312 satır
13 KiB
HTML
312 satır
13 KiB
HTML
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<html>
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<head>
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<title>FSF Europe - The Italian law 248/2000</title>
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</head>
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<body>
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<center>
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<H1>The Italian law 248/2000:<BR />
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a menace to software professionals</H1>
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<P><STRONG>Associazione Software Libero</STRONG></P>
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<P><STRONG>January 2001</STRONG></P>
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</center>
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<BR />
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<!--Table of Contents-->
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<H4>Contents</H4>
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<UL>
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<LI><a name="TOCabstract" href="#abstract">Abstract</a></LI>
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<LI><A NAME="TOCintroduction" HREF="#introduction">Introduction</A></LI>
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<LI><A NAME="TOCwhenTheStampIsNeeded" href="#whenTheStampIsNeeded">When the
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stamp is needed</A></LI>
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<LI><A NAME="TOCwhatIsWritten" href="#whatIsWritten">What is written on the
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stamp and how to obtain it</A></LI>
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<LI><A NAME="TOCmedium" href="#medium">Definition of "medium"</A></LI>
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<LI><A NAME="TOCcomputerProgram" href="#computerProgram">Definition of
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"computer program"</A></LI>
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<LI><A NAME="TOCconclusions" href="#conclusions">Conclusions</A></LI>
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</UL>
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<!--End of Table of Contents-->
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<h4><a name="abstract" href="#TOCabstract">Abstract</a></h4>
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<p><em>This document deals with the problems arising from an amendment to
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Italian copyright law (September, 2000), which in addition to going against a
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subsequent European Community recommendation (February, 2001), poses a
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potentially serious threat to the activities of independent software developers
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and makes it difficult to legally distribute free software in Italy.</em></p>
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<p>Please send any comments to <<a
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href="mailto:info@softwarelibero.it">info@softwarelibero.it</a>>.</p>
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<H4><A NAME="introduction" href="#TOCintroduction">Introduction</A></H4>
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<P>
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The Italian Parliament recently approved an amendment
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to copyright law. The new rules have been in force
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since September 18, 2000 as law 248/2000. The new
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mechanism is as yet unclear, but we suspect that it
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might hinder or even put a stop to the work of anyone
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producing software or using it in their business. The
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main problem of the law lies in the requirement for a
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compulsory stamp (the "bollino SIAE") on <EM>any
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physical medium containing computer programs</EM>
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(Art 181-bis, 1). This requirement adds to previous
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rules that consider any unauthorised copying of
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computer software a criminal offence (rather than
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simply a civil offence). As a consequence, possession
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of computer programs on non-stamped medium, either
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legally or illegally, may lead to a prison sentence.</P>
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<P>
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The scope of the new law is not limited to software,
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and can also be damaging to other spheres of personal
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freedom. We will concentrate here on the issues of
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computer programs, as we consider them the most
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serious. It has been observed that the law, in fact,
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introduces a sort of tax on freely distributable
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software. We think that these concerns are valid, but
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the problem as we see it is much more serious.</P>
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<P>
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Since we were not able to find any substantial commentary on this law on the
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net, we made our own research, by interviewing SIAE officers, Guardia di
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Finanza, Postal and Telecommunications Police, magistrates and copyright
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lawyers.</P>
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<H4><A NAME="whenTheStampIsNeeded" href="#TOCwhenTheStampIsNeeded">When the
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stamp is needed</A></H4>
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<P>Our sources, while sometimes agreeing on the injustice
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of the law, concur that the possession of any computer
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program on medium not marked with the SIAE stamp
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constitutes a crime in accordance with article 171-bis:</P>
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<BLOCKQUOTE>
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Whoever intends to make a profit ...for
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commercial or business purposes, from the use of
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...computer programs contained on a medium not
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bearing the SIAE stamp, is subject to a penalty of
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imprisonment from six months up to three years and to
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a fine from 2500 to 15000 Euros.
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</BLOCKQUOTE>
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<p>According to this article, anyone using a computer
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program for business reasons, and whose medium is not
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marked with the SIAE stamp is committing a crime.</p>
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<P>
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When importing software from abroad, <EM>in order to
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promptly apply the stamp, the importer must notify the
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SIAE in advance about the entrance of the goods into
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state territory</EM> (Art. 181-bis, comma 6) As the
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importer is identified as the buyer, the need for the
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stamp applies even when an individual buys software
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from abroad for business use. A SIAE officer in Rome
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commented: "there's no problem if you import a game
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on CD, but if it's for use it in your business you must
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have it stamped".</P>
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<P>
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Since the law clearly states that <EM>the stamp is
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applied for the sole purpose of protecting rights
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related to intellectual works</EM> (Art 181-bis, comma 2),
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one would ask: "what if you are the author of the
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programs you own?". The answer, from almost all of our
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sources, is that "<EM>the medium must be marked if it
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is used for profit, regardless of whether the profit
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comes from the future commercialisation of the
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software, or for purposes otherwise related to one's
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work</EM>".</P>
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<H4><A NAME="whatIsWritten" href="#TOCwhatIsWritten">What is written on the stamp and how to obtain it
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</A></H4>
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<P>The SIAE stamp <EM>must contain enough
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information to identify the title of the work for which
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it has been requested and the name of the author,
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publisher, producer or copyright holder</EM> (Art 181-bis,
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comma 5). You can apply for the stamp in the main SIAE
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offices. We don't know as yet exactly which offices are
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authorised to issue the stamp: when we asked a local
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SIAE office, the officer stated that only Rome, Milan
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and Naples are authorised, but we verified that they
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can also be obtained in Florence. In any case, asking a
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local office is no good (to us, the officer replied:
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"it's not our job to know, all I know is only out
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of personal interest"). Nor does the web site
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<a href="http://www.siae.it/">http://www.siae.it/</a> offer any help, as you
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always end up at the same "work in progress" page
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(hits made on January 21, 2001).</P>
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<P>
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In practice, in order to obtain the stamps, you should
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go to one of the authorised offices, fill out a host of
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forms only available at the office premises, pay the
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dues, and come back after one to three weeks in order
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to get your coveted little adhesive rectangle of
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legality. Naturally this procedure is required for each
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and every medium owned or imported (to <EM>enable
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identification of the title ...</EM>).</P>
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<H4><A NAME="medium" href="#TOCmedium">Definition of "medium"</A></H4>
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<P>
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To identify the scope of the law, we
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tried to get a fuller explanation of just how
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"medium" is interpreted. A SIAE officer in Rome
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affirms that "medium" is the CD or the floppy disk,
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thus excluding the hard disk "for obvious practical
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reasons". He explicitly admitted that a software
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consultant may travel with a hard disk in his pocket,
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but not a CD or a floppy disk (yet denying to sign a
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declaration to that effect). As we expected, both the
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magistrate and the lawyer with whom we spoke refused to
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consider the hard disk as different from other mediums.
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They even suggested that software consultants carrying
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their own laptop for use on the client's premises
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should apply a SIAE stamp on the laptop itself.</P>
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<P>
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In fact, the SIAE interpretation is not unreasonable: a
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hard disk contains hundreds of programs. For example,
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we run GNU/Linux on our computers, and there are over
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800 software packages installed on each of
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them. Identification may be more straightforward for a
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proprietary operating system, but no one working with a
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computer has less than 10-20 programs installed on his
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machine. Because of that, the identification of the
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"title and author" of each and every program on a
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single stamp is just not feasible; even the idea of
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applying tens of hundreds of stamps on one product is
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not conceivable given the highly dynamic contents of a
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disk. A hard disk shares the same problem as a CD
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regarding the high number of programs, and has the same
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problems as a floppy with regard to dynamic contents,
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so in fact the "practical reasons" invoked by the
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SIAE officer should not be applied to hard disks alone.</P>
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<P>
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In principle, paper medium could be affected too. When
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a program is written in an interpreted language,
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distribution "for profit" is possible on paper, slide
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or transparency. For example, it is common practice for
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a software consultant when teaching courses, to
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distribute and comment on a complete source (a couple
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of pages, often less) of a functioning program which is
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effectively usable. Every demo program distributed on a
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magazine or during a paid course (i.e. "for profit")
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apparently requires the SIAE stamp, under penalty of
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seizure of the unstamped material and imprisonment
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(Art. 171-bis, comma 1). To date, we have not collected
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legal opinions on the applicability to paper medium.</P>
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<H4><A NAME="computerProgram" href="#TOCcomputerProgram">Definition of "computer
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program"</A></H4>
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<P>
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The main problem with the new law lies in the use of
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the term "computer program", not defined by the law
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itself nor by any other legal standard. These words
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have a sound meaning when dealing with intellectual
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works, because computer programs are generally
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protected by copyright just like any musical or
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literary work. However, the program (an abstract
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entity) has to be given material dimensions to enable
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the application of a stamp.</P>
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<P>
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This law has obviously been written with the blinkered
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attitude, where "program" means "a very expensive
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CD, printed for mass market distribution and not
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legally reproducible". Only this sort of reasoning
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could justify the requirement for stamp application on
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"all mediums", given the difficulty of obtaining
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it. But freely redistributable programs do in fact
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exist: for example programs written for internal use in
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companies, which are repeatedly duplicated, programs
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used in computer courses, or free software programs,
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such as all the components of a GNU/Linux system. Also,
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programs exist which are "small", much smaller than
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the stamp itself. Some of the programs that we use in
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our everyday work are a few kilobytes long, even few
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lines of text, and many common utilities are small,
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like the popular Pkzip program. There are a number of
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programs that can be freely downloaded from the
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Internet to a user's hard disk; but this is a crime
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according to the new law.</P>
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<P>
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The members of Parliament who approved the law admit
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that it was born under the pressure of strong lobbying
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by big software companies, intentionally ignoring --
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and as a consequence making them illegal -- all
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programs and mediums that are not distributed through
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the usual commercial distribution channels. The
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official excuse is that programmers, in order to earn
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what they deserve, need to be protected from the
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illegal copying of software for personal use. However,
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the lobbyists that pushed the law are the very same
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software companies who recently issued a TV advert,
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almost disguised as public information, where the act
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of copying a computer program is depicted as one of the
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worst crimes out. This spot was later condemned as
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misleading and its further diffusion prohibited.</P>
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<P>
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Non-profit use of programs does not require
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the stamp; however, several actions can be defined as
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"profit-making". The SIAE officer in Florence
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declares that free distribution of a demo is for
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profit, and thus requires application for the
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stamps. It may be conceivable that using a computer for
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browsing the web can be considered for profit, since it
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enables access to information useful for one's own
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work. So have we reached the point where even use of a
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network browser will require a stamp?</P>
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<H4><A NAME="conclusions" href="#TOCconclusions">Conclusions</A></H4>
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<P>
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The mechanisms introduced by the new copyright law have
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the potential of paralysing or criminalising any
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conceivable business that uses computer
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programs. Compliance with the law in this respect is
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especially difficult. Law 248/2000 was intended as a
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stand against software piracy, but it now risks
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damaging the very authors it claims to
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protect. Independent programmers will incur
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unreasonable expenses and difficulties that will hinder
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their freedom of expression, while established software
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companies will have the chance of increasing their near
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monopolistic grip on users. The police have the right
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to inspect your office and seize material even if
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nobody has sued you for infringement, as the order of a
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judge is sufficient to take actions for this crime. It
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is not unlikely that Police forces will set up a
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nation-wide round-up in the future, to spread
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uncertainty and force literal application of the law to
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prevent further such crime.</P>
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<P>
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Independent software businesses are the most damaged by
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application of the new law. We claim that its
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application should be suspended until its effects are
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seriously studied and a new law be written. The focus
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of the law should be the good of society at large,
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rather than the mere income of big software companies.</P>
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</body>
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<timestamp>$Date$ $Author$</timestamp>
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</html>
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