The new EU plan to tackle organized piracy also includes a not-yet-well-known clause Hospitalized criminalizing indirect copyright infringement. This refers to ‘inciting or assisting in’ copyright infringement. The prohibition here goes beyond the actual downloading or uploading of copyrighted files. If this is passed, the creators of file-sharing programs mainly used for the exchange of copyrighted material will be punishable throughout the EU. The European Parliament will consider this matter later this year.
The proposal is expected to have the same effect as the recent US Supreme Court ruling, which ruled that the creators of the file-sharing program Grokster could be held liable for its illegal use. Some experts expect that the proposal, if adopted, will cause many difficulties. Its wording is rather vague and with a lot of software that can be used for both legal and illegal purposes, it will be completely unclear whether its use is prohibited or not. In fact, it goes even further than the Grokster case, because that was a civil case, while this is about criminal sanctions.
Some programmers expect that the proposal will have a pronounced inhibiting effect on innovation. Developing a new program usually costs a lot of money and an entrepreneur will not like to run the risk that his entire investment is lost because the program can also be used for illegal business and is therefore banned. This raises the question of whether a program that is initially only used for legal purposes but after a while also for illegal purposes is prohibited or not. There is also the problem that different Member States may have different views on this.
The proposal also sets the maximum penalty for piracy by a criminal organization at a fine of EUR 300,000 and four years in prison. In the context of the harmonization of legislation, all Member States should at least impose this penalty on organized piracy. The software industry is not at all opposed to a tough approach to commercial piracy. The shoe pinches more with the vague wording of the proposal and the unclear status of programs that can be used for both legal and illegal purposes.