The European Parliament voted yesterday to pass legislation that could still see people copying music or movies for their own personal use stand in the dock alongside hard-nosed counterfeiters and commercial copyright blaggers.
The Intellectual Property Rights Enforcement Directive (IPRED2) has been designed to criminalise people for intellectual property breaches. Opponents say it passed almost unchanged, and that it is, in parts, "dangerously unclear".
But according to Umberto Guidoni, Italian MEP and former astronaut, the bill has at least been narrowed to exclude P2P file sharers after its first reading in the Parliament.
Guidoni, who says he still has reservations about the form of the bill, led a campaign to limit the rules on behalf of the European United Left. He commented: "Unfortunately, we were not successful in rejecting this directive, but at least we managed to secure some limitations that protect the private not for profit use of P2P and file sharing."
The directive now passes to the Council of the European Union, where ministers from member states will consider how to apply the directive country by country.
Electronic Frontier Foundation (EFF) spokesman Danny O'Brien says there were really only two good possible outcomes: the first would have been an outright rejection. The other would be that the directive was so badly drafted and so unclear that the council would be unwilling to let it pass into criminal law and would tear it apart.
The directive passing without many of the amendments its opponents were calling for leaves consumers at risk of heavy criminal penalties, O'Brien argues.
"We'd be satisfied if the scope of the directive stuck to the examples that the commission give as to its effect, which is copyright piracy and trademark counterfeiting (which is the definition for criminal sanctions in TRIPS).
"Anything more than that isn't harmonising, it's ratcheting up and broadening the scope of what is classed as criminal acts in the EU," he told us.
He added that even the UK government has opposed the directive, largely because it is not even clear that the EC has the competence (in the legal sense) to "harmonise" criminal law.
Indeed, this is the first time the commission has stuck its oar into the murky waters of criminal legislation, and UK ministers argue that by the commission's own measure the new IP rules are neither necessary nor proportionate.
The UK also feels there hasn't been enough time for member states to digest the last set of IP law from Brussels.
Guidoni also has concerns about the EC drafting criminal laws. He said: "This directive lacks economic and social analysis and the basic requirements of criminal law: clear definitions of scope and crime. IPRED2 confuses piracy and commercial infringements. This makes it an instrument that could potentially criminalise the major parts of European industry and "ordinary people" can be treated as criminals.
The proposals will mean "serious" IP cheats will face a maximum sentence of at least four years in prison and a €300,000 fine. Serious cases are those involving organised crime or posing a risk to health or security. Other IP breakers will face a €100,000 fine.
Although some efforts have been made to limit the scope of the directive, many of the tabled amendments were still not legally tight enough for the EFF and fellow campaigners the Foundation for a Free Information Infrastructure (FFII).
For instance, the directive's rapporteur Nicola Zingaretti tabled an amendment that tried to define commercial scale, and tried (succesfully, as it turns out) to exclude patents from the scope of the new laws.
But O'Brien argues that it was not a good thing that proposed criminal laws are being amended at such short notice, and often orally. He adds that even the strongest amendments were still fuzzy enough to define "commercial scale" infringement not by its intentions, but by its effects, leaving a huge hole which could be used to prosecute consumers. ®