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  3. <head>
  4. <title>FSF Europe - The Italian law 248/2000</title>
  5. </head>
  6. <body>
  7. <center>
  8. <H1>The Italian law 248/2000:<BR />
  9. a menace to software professionals</H1>
  10. <P><STRONG>Associazione Software Libero</STRONG></P>
  11. <P><STRONG>January 2001</STRONG></P>
  12. </center>
  13. <BR />
  14. <!--Table of Contents-->
  15. <H4>Contents</H4>
  16. <UL>
  17. <LI><a name="TOCabstract" href="#abstract">Abstract</a></LI>
  18. <LI><A NAME="TOCintroduction" HREF="#introduction">Introduction</A></LI>
  19. <LI><A NAME="TOCwhenTheStampIsNeeded" href="#whenTheStampIsNeeded">When the
  20. stamp is needed</A></LI>
  21. <LI><A NAME="TOCwhatIsWritten" href="#whatIsWritten">What is written on the
  22. stamp and how to obtain it</A></LI>
  23. <LI><A NAME="TOCmedium" href="#medium">Definition of "medium"</A></LI>
  24. <LI><A NAME="TOCcomputerProgram" href="#computerProgram">Definition of
  25. "computer program"</A></LI>
  26. <LI><A NAME="TOCconclusions" href="#conclusions">Conclusions</A></LI>
  27. </UL>
  28. <!--End of Table of Contents-->
  29. <h4><a name="abstract" href="#TOCabstract">Abstract</a></h4>
  30. <p><em>This document deals with the problems arising from an amendment to
  31. Italian copyright law (September, 2000), which in addition to going against a
  32. subsequent European Community recommendation (February, 2001), poses a
  33. potentially serious threat to the activities of independent software developers
  34. and makes it difficult to legally distribute free software in Italy.</em></p>
  35. <p>Please send any comments to &lt;<a
  36. href=""></a>&gt;.</p>
  37. <H4><A NAME="introduction" href="#TOCintroduction">Introduction</A></H4>
  38. <P>
  39. The Italian Parliament recently approved an amendment
  40. to copyright law. The new rules have been in force
  41. since September 18, 2000 as law 248/2000. The new
  42. mechanism is as yet unclear, but we suspect that it
  43. might hinder or even put a stop to the work of anyone
  44. producing software or using it in their business. The
  45. main problem of the law lies in the requirement for a
  46. compulsory stamp (the "bollino SIAE") on <EM>any
  47. physical medium containing computer programs</EM>
  48. (Art 181-bis, 1). This requirement adds to previous
  49. rules that consider any unauthorised copying of
  50. computer software a criminal offence (rather than
  51. simply a civil offence). As a consequence, possession
  52. of computer programs on non-stamped medium, either
  53. legally or illegally, may lead to a prison sentence.</P>
  54. <P>
  55. The scope of the new law is not limited to software,
  56. and can also be damaging to other spheres of personal
  57. freedom. We will concentrate here on the issues of
  58. computer programs, as we consider them the most
  59. serious. It has been observed that the law, in fact,
  60. introduces a sort of tax on freely distributable
  61. software. We think that these concerns are valid, but
  62. the problem as we see it is much more serious.</P>
  63. <P>
  64. Since we were not able to find any substantial commentary on this law on the
  65. net, we made our own research, by interviewing SIAE officers, Guardia di
  66. Finanza, Postal and Telecommunications Police, magistrates and copyright
  67. lawyers.</P>
  68. <H4><A NAME="whenTheStampIsNeeded" href="#TOCwhenTheStampIsNeeded">When the
  69. stamp is needed</A></H4>
  70. <P>Our sources, while sometimes agreeing on the injustice
  71. of the law, concur that the possession of any computer
  72. program on medium not marked with the SIAE stamp
  73. constitutes a crime in accordance with article 171-bis:</P>
  75. Whoever intends to make a profit ...for
  76. commercial or business purposes, from the use of
  77. programs contained on a medium not
  78. bearing the SIAE stamp, is subject to a penalty of
  79. imprisonment from six months up to three years and to
  80. a fine from 2500 to 15000 Euros.
  82. <p>According to this article, anyone using a computer
  83. program for business reasons, and whose medium is not
  84. marked with the SIAE stamp is committing a crime.</p>
  85. <P>
  86. When importing software from abroad, <EM>in order to
  87. promptly apply the stamp, the importer must notify the
  88. SIAE in advance about the entrance of the goods into
  89. state territory</EM> (Art. 181-bis, comma 6) As the
  90. importer is identified as the buyer, the need for the
  91. stamp applies even when an individual buys software
  92. from abroad for business use. A SIAE officer in Rome
  93. commented: "there's no problem if you import a game
  94. on CD, but if it's for use it in your business you must
  95. have it stamped".</P>
  96. <P>
  97. Since the law clearly states that <EM>the stamp is
  98. applied for the sole purpose of protecting rights
  99. related to intellectual works</EM> (Art 181-bis, comma 2),
  100. one would ask: "what if you are the author of the
  101. programs you own?". The answer, from almost all of our
  102. sources, is that "<EM>the medium must be marked if it
  103. is used for profit, regardless of whether the profit
  104. comes from the future commercialisation of the
  105. software, or for purposes otherwise related to one's
  106. work</EM>".</P>
  107. <H4><A NAME="whatIsWritten" href="#TOCwhatIsWritten">What is written on the stamp and how to obtain it
  108. </A></H4>
  109. <P>The SIAE stamp <EM>must contain enough
  110. information to identify the title of the work for which
  111. it has been requested and the name of the author,
  112. publisher, producer or copyright holder</EM> (Art 181-bis,
  113. comma 5). You can apply for the stamp in the main SIAE
  114. offices. We don't know as yet exactly which offices are
  115. authorised to issue the stamp: when we asked a local
  116. SIAE office, the officer stated that only Rome, Milan
  117. and Naples are authorised, but we verified that they
  118. can also be obtained in Florence. In any case, asking a
  119. local office is no good (to us, the officer replied:
  120. "it's not our job to know, all I know is only out
  121. of personal interest"). Nor does the web site
  122. <a href=""></a> offer any help, as you
  123. always end up at the same "work in progress" page
  124. (hits made on January 21, 2001).</P>
  125. <P>
  126. In practice, in order to obtain the stamps, you should
  127. go to one of the authorised offices, fill out a host of
  128. forms only available at the office premises, pay the
  129. dues, and come back after one to three weeks in order
  130. to get your coveted little adhesive rectangle of
  131. legality. Naturally this procedure is required for each
  132. and every medium owned or imported (to <EM>enable
  133. identification of the title ...</EM>).</P>
  134. <H4><A NAME="medium" href="#TOCmedium">Definition of "medium"</A></H4>
  135. <P>
  136. To identify the scope of the law, we
  137. tried to get a fuller explanation of just how
  138. "medium" is interpreted. A SIAE officer in Rome
  139. affirms that "medium" is the CD or the floppy disk,
  140. thus excluding the hard disk "for obvious practical
  141. reasons". He explicitly admitted that a software
  142. consultant may travel with a hard disk in his pocket,
  143. but not a CD or a floppy disk (yet denying to sign a
  144. declaration to that effect). As we expected, both the
  145. magistrate and the lawyer with whom we spoke refused to
  146. consider the hard disk as different from other mediums.
  147. They even suggested that software consultants carrying
  148. their own laptop for use on the client's premises
  149. should apply a SIAE stamp on the laptop itself.</P>
  150. <P>
  151. In fact, the SIAE interpretation is not unreasonable: a
  152. hard disk contains hundreds of programs. For example,
  153. we run GNU/Linux on our computers, and there are over
  154. 800 software packages installed on each of
  155. them. Identification may be more straightforward for a
  156. proprietary operating system, but no one working with a
  157. computer has less than 10-20 programs installed on his
  158. machine. Because of that, the identification of the
  159. "title and author" of each and every program on a
  160. single stamp is just not feasible; even the idea of
  161. applying tens of hundreds of stamps on one product is
  162. not conceivable given the highly dynamic contents of a
  163. disk. A hard disk shares the same problem as a CD
  164. regarding the high number of programs, and has the same
  165. problems as a floppy with regard to dynamic contents,
  166. so in fact the "practical reasons" invoked by the
  167. SIAE officer should not be applied to hard disks alone.</P>
  168. <P>
  169. In principle, paper medium could be affected too. When
  170. a program is written in an interpreted language,
  171. distribution "for profit" is possible on paper, slide
  172. or transparency. For example, it is common practice for
  173. a software consultant when teaching courses, to
  174. distribute and comment on a complete source (a couple
  175. of pages, often less) of a functioning program which is
  176. effectively usable. Every demo program distributed on a
  177. magazine or during a paid course (i.e. "for profit")
  178. apparently requires the SIAE stamp, under penalty of
  179. seizure of the unstamped material and imprisonment
  180. (Art. 171-bis, comma 1). To date, we have not collected
  181. legal opinions on the applicability to paper medium.</P>
  182. <H4><A NAME="computerProgram" href="#TOCcomputerProgram">Definition of "computer
  183. program"</A></H4>
  184. <P>
  185. The main problem with the new law lies in the use of
  186. the term "computer program", not defined by the law
  187. itself nor by any other legal standard. These words
  188. have a sound meaning when dealing with intellectual
  189. works, because computer programs are generally
  190. protected by copyright just like any musical or
  191. literary work. However, the program (an abstract
  192. entity) has to be given material dimensions to enable
  193. the application of a stamp.</P>
  194. <P>
  195. This law has obviously been written with the blinkered
  196. attitude, where "program" means "a very expensive
  197. CD, printed for mass market distribution and not
  198. legally reproducible". Only this sort of reasoning
  199. could justify the requirement for stamp application on
  200. "all mediums", given the difficulty of obtaining
  201. it. But freely redistributable programs do in fact
  202. exist: for example programs written for internal use in
  203. companies, which are repeatedly duplicated, programs
  204. used in computer courses, or free software programs,
  205. such as all the components of a GNU/Linux system. Also,
  206. programs exist which are "small", much smaller than
  207. the stamp itself. Some of the programs that we use in
  208. our everyday work are a few kilobytes long, even few
  209. lines of text, and many common utilities are small,
  210. like the popular Pkzip program. There are a number of
  211. programs that can be freely downloaded from the
  212. Internet to a user's hard disk; but this is a crime
  213. according to the new law.</P>
  214. <P>
  215. The members of Parliament who approved the law admit
  216. that it was born under the pressure of strong lobbying
  217. by big software companies, intentionally ignoring --
  218. and as a consequence making them illegal -- all
  219. programs and mediums that are not distributed through
  220. the usual commercial distribution channels. The
  221. official excuse is that programmers, in order to earn
  222. what they deserve, need to be protected from the
  223. illegal copying of software for personal use. However,
  224. the lobbyists that pushed the law are the very same
  225. software companies who recently issued a TV advert,
  226. almost disguised as public information, where the act
  227. of copying a computer program is depicted as one of the
  228. worst crimes out. This spot was later condemned as
  229. misleading and its further diffusion prohibited.</P>
  230. <P>
  231. Non-profit use of programs does not require
  232. the stamp; however, several actions can be defined as
  233. "profit-making". The SIAE officer in Florence
  234. declares that free distribution of a demo is for
  235. profit, and thus requires application for the
  236. stamps. It may be conceivable that using a computer for
  237. browsing the web can be considered for profit, since it
  238. enables access to information useful for one's own
  239. work. So have we reached the point where even use of a
  240. network browser will require a stamp?</P>
  241. <H4><A NAME="conclusions" href="#TOCconclusions">Conclusions</A></H4>
  242. <P>
  243. The mechanisms introduced by the new copyright law have
  244. the potential of paralysing or criminalising any
  245. conceivable business that uses computer
  246. programs. Compliance with the law in this respect is
  247. especially difficult. Law 248/2000 was intended as a
  248. stand against software piracy, but it now risks
  249. damaging the very authors it claims to
  250. protect. Independent programmers will incur
  251. unreasonable expenses and difficulties that will hinder
  252. their freedom of expression, while established software
  253. companies will have the chance of increasing their near
  254. monopolistic grip on users. The police have the right
  255. to inspect your office and seize material even if
  256. nobody has sued you for infringement, as the order of a
  257. judge is sufficient to take actions for this crime. It
  258. is not unlikely that Police forces will set up a
  259. nation-wide round-up in the future, to spread
  260. uncertainty and force literal application of the law to
  261. prevent further such crime.</P>
  262. <P>
  263. Independent software businesses are the most damaged by
  264. application of the new law. We claim that its
  265. application should be suspended until its effects are
  266. seriously studied and a new law be written. The focus
  267. of the law should be the good of society at large,
  268. rather than the mere income of big software companies.</P>
  269. </body>
  270. <timestamp>$Date$ $Author$</timestamp>
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