EU Court Of Justice Says Private Copying Levy On Device Maker Violates EU Law

from the no-ipod-tax dept

Thanks to David Hammerstein and Glyn Moody for pointing us to the news that the European Court of Justice has rejected an attempt to collect a private copying levy in Spain that was being disputed by a consumer electronics firm, Padawan. The Spanish collection society SGAE demanded that Padawan, which made CD, DVD and MP3 players, pay up for the typical "you must be a criminal" private copying levy.

However, the court had some problems with this. You can read the ruling (in English) to get the details -- though, it's a little opaque. The court did say that, in general, private copying levies can be okay, but that the law requires the levies be based on "fair compensation," meaning that they're tied to actual harm. And, the court concludes, that means it should only apply to end-user purchases, where the assumption can be made that private copying may be going on. Trying to force businesses to pay is unreasonable, and contradicts EU law.

While I still have issues with the general concept of private copying levies (a tax presuming you are breaking the law), it's at least good to see the EU not let it expand even further.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Oct 21st, 2010 @ 7:55pm

    "Trying to force businesses to pay is unreasonable"

    Because govts only exist to serve businesses and not the public good.

     

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  2.  
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    Anonymous Coward, Oct 21st, 2010 @ 7:56pm

    Re:

    (not that I think businesses should pay, but I also think end users shouldn't pay either. This double standard is irritating).

     

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  3.  
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    nelsoncruz (profile), Oct 21st, 2010 @ 10:10pm

    It's not really "a tax presuming you are breaking the law". It's actually a tax presuming you are using a right given by the law - that you can make copies for personal/private use.

    The law in Spain, as well as here in Portugal and other places, recognizes that right, but also says such copying "should" be accompanied by "compensation". And these levies are the mechanism for that.

    I'm not saying I don't have a problem with these levies... it's still something you pay whether you buy CDs or DVDs to copy copyrighted works or your vacation photos. But short of a voluntary system, where nobody would pay, it's the best we can do. As long as these levies are reasonably small, I'm OK with them.

     

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  4.  
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    The Groove Tiger (profile), Oct 21st, 2010 @ 10:46pm

    Re:

    I think they specifically mean the business that sells the stuff, as it can be assumed they're not going to take the brand new CD players off the shelves and use them to play "pirated" CDs. By end users, they probably also means business that BUY the CD players and use them for whatever (and surely must be criminals and raporists).

     

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  5.  
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    Anonymous Coward, Oct 22nd, 2010 @ 1:37am

    Re:

    As long as these levies are reasonably small, I'm OK with them.

    Good for you.

    I don't care how small the levy is I am not okay with paying for something I'm not doing. There is no justifiable reason for forcing me to pay a levy so I can copy things I produce myself e.g. family photos and video.

    How's about we introduce a levy to subsidise my gym membership? Surely, if it's small enough you won't mind paying even if you don't use my gym. Right?

     

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  6.  
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    mike allen (profile), Oct 22nd, 2010 @ 1:39am

    Re:

    therefore if you use the discs / machines to store your own material register with the appriote bidies and demand your share of the levy as the copyright owner. they would soon get fed up with millions of people asking for their rights.

     

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  7.  
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    mike allen (profile), Oct 22nd, 2010 @ 1:41am

    Re: Re:

    therefore if you use the discs / machines to store your own material register with the appropiate bodies and demand your share of the levy as the copyright owner. they would soon get fed up with millions of people asking for their rights.
    mote to self buy new keyboard.

     

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  8.  
    identicon
    Alatar, Oct 22nd, 2010 @ 2:41am

    Nelsoncruz is right, it is not a "you must be a criminal" tax

    Actually, this is not a tax on illegal uses, because such a tax would make filesharing legal, it's more vicious.

    It is actually a tax which assumes that every single person who buys a hard drive, a camera memory card, a car with a GPS with onboard memory, a tablet, a phone or other things (we've got enough retarded cases) IS a pro who will reencode his own "legally purchased" music CDs and movie DVDs and store them on it.
    It conveniently leaves out the facts that :
    a) which proportion of the buyers even know what a cd/dvd rip is? I suspect very little of them.
    b) it assumes the user will circumvent a DRM, which is an illegal act. God thee DRMs are a real crap.

    Actually, such a levy, if allowed to exist (which I contest), should account for :
    - the proportion of the population who knows how to reencode, and the amount of "products" they reencode.
    - the proportion of "products" which do not come with a "copy protection" mechanisms, which is, again, very low

     

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  9.  
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    masquisieras, Oct 22nd, 2010 @ 2:59am

    To The Groove Tiger

    No the ones that sell the stuff, but the ones that buy them the main problems with the levy are:

    Legally (what the EU has said)

    1) Business and Administration as no-private entities has no the right to make PRIVATE copies so is no fair that they pay to compensate for the harm done by private copy and the actual spanish law has no way for them to no pay or to recover this cost.

    Other problems:

    2) By law, the levies are collected by Collection Agencies (the SGAE in this case) that operate under the asuncion that there aren't no-affiliated authors and in general are no democratic and very unfair to the small author, and has his own bureaucratic and accounting rule that make sure that what Mike Allen propose is not viable.

    3) The evaluation of harm is done, in practice, by the Collection Agencies that has in his own interest to make it as high as they can dream up. The growth of no-affiliated authors and the decline in CD sells has reduced the income of the agencies so they calculate the harm to pad their account not to really compensate for the real harm. In EEUU terms the harm is been calculated in BSA piracy accounting.

    Nelsoncruz due that, at least in Spain, the private copies for private use are only legal when done from "Legal Copies" would not be easier and fairer to charge the levy in the "Legal Copies" purchasing at the same time the "Legal Copy" and the right to make private copies from it.

    The only problem with this model is that the "Legal Copies" are already charged to the monopoly controlled maximum that the market would bear so by market force the "Legal Copies"+Private Copy right would end at the same price that the actual "Legal Copy" because in reality the levy is a double dipping through an different industry ( the consumer electronic one).

     

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  10.  
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    Anonymous Coward, Oct 22nd, 2010 @ 5:04am

    Re: Nelsoncruz is right, it is not a "you must be a criminal" tax

    Isn't circumventing DRM illegal only on the USA, which does not have these crazy levies?

     

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  11.  
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    abc gum, Oct 22nd, 2010 @ 5:09am

    How hard would it be to file a class action suit claiming defamation. They are claiming that everyone is a pirate.

     

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  12.  
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    Alatar, Oct 22nd, 2010 @ 5:10am

    Re: Re: Nelsoncruz is right, it is not a "you must be a criminal" tax

    I'm not sure, have to check.
    Anyway, if they want to keep this tax, then countries should outlaw such DRMs

     

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  13.  
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    ofb2632 (profile), Oct 22nd, 2010 @ 5:32am

    Re:

    Why should we pay another tax to an electronic firm? That would be saying they can tax our bottled water and give it right over to the oil industry because the oil industry thinks we dont pay enough taxes on the oil that went into making the bottle.

     

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  14.  
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    Anonymous Coward, Oct 22nd, 2010 @ 7:34am

    Re: Re: Nelsoncruz is right, it is not a "you must be a criminal" tax

    Actually the U.S. does have a levy on "audio CD's" that goes straight to the RIAA.

     

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  15.  
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    Anonymous Coward, Oct 22nd, 2010 @ 7:55am

    ohhhh canada

    we pay the CRIA and they dont pay artists
    OHHHHH canada
    we stand on guard for 6 billion dollar lawsuits.....

     

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  16.  
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    Hephaestus (profile), Oct 22nd, 2010 @ 7:57am

    Crystal ball

    The Berne three step test ...

    "Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder."

    Wouldn't it be neat if an open source project took exception to the levy under the "conflict with a normal exploitation" and "unreasonably prejudice" tests. Which interests are greater, those of a commercial entity, or those of the open source community and society at large?

     

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  17.  
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    nasch (profile), Oct 22nd, 2010 @ 10:28am

    Re:

    But short of a voluntary system, where nobody would pay, it's the best we can do.

    Actually I think the best we can do is no levy at all.

     

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  18.  
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    Anonymoose, Oct 22nd, 2010 @ 1:06pm

    If there's a 'you must be filesharing' tax, shouldn't paying it immunize you from future lawsuits?

     

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  19.  
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    nelsoncruz (profile), Oct 26th, 2010 @ 12:40pm

    Re: Re: Re: Nelsoncruz is right, it is not a "you must be a criminal" tax

    Circumventing DRM is illegal in Europe as well, including in countries where private copies are legal and levies exist. Which is ridiculous. I agree.

    Here is how the legislators tried to get around this here in Portugal. The law states that DRM "should not" prevent the free uses under the law (like private copies, educational uses, etc). When it does, the distributor of the DRM protected work should deposit with IGAC (General Inspection of Cultural Activities) the means by which anyone can enjoy these rights. That, of course, doesn't happen! Nobody deposits any such "means". One would think the DRMs would loose legal protection because of that... but they don't. Maybe the courts will rule that way one day. As far as I know, no DRM circumvention case has ever gone to court here.

    I found out recently we don't even have case law determining whether photocopying an entire book is legal or not, under the same 2004 copyright law update that protects DRMs... so that could take a while. :)

     

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  20.  
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    nelsoncruz (profile), Oct 26th, 2010 @ 1:03pm

    Re: Nelsoncruz is right, it is not a "you must be a criminal" tax

    Actually, this is not a tax on illegal uses, because such a tax would make filesharing legal, it's more vicious.

    Yes, it's a tax for legal uses. And actually it has been used by a spanish judge to rule file sharing as legal. Mike also did a post on it here on techdirt. Basically the judge ruled that the legality of using file sharing applications depended on what you do with the downloaded copies. If they are for personal/private use (ie you don't go around selling them) then it's legal under the law. He mentioned specifically that such copies end up on physical media and devices that pay levies precisely for that purpose. He also ruled that private individuals uploading files to each other did not equal distribution or broadcasting under the (spanish) law.

    That was in March, and legislation that will (probably) overturn that decision is still under discussion.

     

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