Under Swiss Copyright Reform, Private Sharing And Downloads From Unauthorized Sources Would Still Be Legal

from the truly-remarkable dept

Two years ago, Techdirt noted the price that Switzerland paid for daring to suggest that unauthorized file-sharing really wasn’t such a problem: it was put on the USTR naughty step, aka the “Special 301 list.” A post on Intellectual Property Watch explains the current copyright situation in Switzerland:

Anybody can download a movie or a soundtrack and share it with his family in the realm of the private sphere. The downloaded movie or soundtrack cannot, however, be made public on the internet — for example through a social media platform — or transmitted to third persons, the [Swiss] official said.

Switzerland is in the process of revising its copyright laws, and you might expect that by now it has been “persuaded” by the US to change its mind about allowing people to download files freely and share them in this way, but to its credit, that doesn’t seem to be the case (pdf). Here’s what the official Swiss working group carrying out the review of copyright, known as AGUR12, is recommending:

In view of the measures proposed below… downloading from illegal sources, as provided for in current law according to the prevailing doctrine, should remain legal.

The proposed measures mentioned there concern new responsibilities for ISPs, designed to help remove unauthorized online content. These include “takedown”:

Hosting providers should remove content that has been illegally uploaded when notified to do so by the rights holder or a competent authority.


Hosting providers, whose business model is clearly designed for the infringement of copyright by users, or who intentionally promote running the risk of performing illegal acts through measures or omissions for which they are responsible, need to remove illegally uploaded content when notified to do so by the rights holder and take all reasonable measures to prevent any further illegal uploading of such content.

And blocking:

On the order of the authorities, access providers located in Switzerland need, in serious cases, to block access to web portals that feature obvious illegal sources by means of IP and DNS blocking. The blocking of approved content along with unapproved content (overblocking) is to be avoided, as far as possible, by the competent authorities. All blocking measures are to be made publicly known in an appropriate form by the competent authorities and they may not compromise the technical functionality of the IP or DNS system.

AGUR12 also proposes introducing a new warning system for users, which concerns sharing materials on P2P networks:

An overzealous enforcement of the law is problematic and is perceived as being aggressive because internet users are often unclear about the legal situation. Prior notification may remedy this. It is therefore important to create the possibility for access providers to issue a one-off notification, when notified by the rights holder or a competent authority, to owners of internet connections who seriously infringe copyright by using peer-to-peer networks. Rights owners should adequately compensate access providers for the costs incurred for delivering such notification. Upon receipt of the notification, the subscriber will then have to take appropriate steps to prevent continued use of his connection for copyright infringement via peer-to-peer networks in order to avoid facing joint civil liability in the event of recurrence. To this end, the necessary legal basis is to be established and a guarantee of judicial review is to be observed; in particular, ISPs and consumer organisations must have the possibility of appealing to the competent authority upon notification from a rights holder.

As these excerpts of the recommended changes indicate, while revising their laws for the digital age, the Swiss seem to be keen to maintain their refreshingly moderate and rational approach to copyright. Which doubtless means that we can expect to see the country placed on the Special 301 list for some years to come.

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Comments on “Under Swiss Copyright Reform, Private Sharing And Downloads From Unauthorized Sources Would Still Be Legal”

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Chris Brand says:

Re: don't understand

To my mind, that’s the way it should be – the consumer (a) has no way of knowing what they’re going to be provided with when they click on a link – that’s entirely up to the provider, and (b) has no way of knowing whether the provider is authorised to provide that content or not. Only the provider knows whether they have a license or not, and knows what they’re providing to any given user (a license to distribute is likely very different to an end-user license).

It’s always been distribution that actually conflicts with the business models of content providers, not reproduction – reproduction was traditionally a good stand-in for “intent to distribute” (nobody was likely to go to the expense of setting up a printing press with the intent of keeping multiple copies of “Gone with the Wind” in their library at home).

Anonymous Coward says:

Re: don't understand

I like the rational that has been given for why producers are punished but not consumers, however using something without permission is stealing. Stealing is wrong.

I do feel that stuff should be more open and free, however another part of me feels that you should still have to pay to get your copy of the media first but then have unlimited rights to copy it and store it in your posession.

It just seems that this law makes a loophole to the consumer that as long as a consumer acquired it first (whether leagally or illegally) they can keep a copy of it instead of paying for the merchandise in the first place.

Anonymous Coward says:

Re: Re: don't understand

Chris Brand, you make a good point.

I guess it depends on if the consumer knows they are taking an illegal copy. That right there is really hard to prove so it does seem better to be safe and say they are not held accountable.

I guess if you go to a site like illegaldownloads.com you should know you are getting illegal stuff and should still be procescuted for it. Where as if you go to youtube it is up to the content provider to only post stuff they own or post as fair use so that others can watch it.

Anonymous Coward says:

Re: Re: don't understand

Using something without permission is unauthorized access, unlicensed use, piracy or similar terms. Using a broad and even to some extend unrelated category like “stealing” to easen the lix number is unfortunate.

I think there is great sense in taking an “innocense untill proven guilty”-stance in these cases. The protection of the consumer must take precedent over the problematic posession charges where, mens rea, copyright exceptions and de minimus often makes any charge grey area guilt, grey area compensation.

Anonymous Coward says:

Re: Re: Re: don't understand

Fine. I will give you 2 bit-for-bit identical files. One – downloaded from illegal source – so according to you “illegal”. The other one – completely “legal” WAV file, made as a copy of my own CD (it’s Europe, I can copy my stuff).
Please, tell me, which is which.

You can’t. They are identical. Yet you try to convince me, you can. I asked you, if they are somehow branded. You chose not to answer. Had you thought a bit, you’d understand the folly of claiming “illegality” of a file, if you cannot tell one from the other. You did not. So my opinion about your mental abilities is justified.

And so I have wasted some bits to explain trivialities to a clueless.

Anonymous Coward says:

Re: Re: Re:2 don't understand

No, I wasn’t trying to “convince” anyone with my questions that’s why they were questions. But since you seem to want to continue this conversation and feel so superior go visit http://xkcd.com/1386/

It’s true that a file won’t have an arbitrary “illegal” or “legal” status appended to it. Also true that two identical files acquired different ways won’t have any way of keeping track of where the file came from. I never stated anything to the contrary.

Any consumer will know where they got the file from hence they could consider a file themselves as “illegal” or not. If you choose not to do that, that is fine, I don’t care it is up to you. The arbitrary label is what the major content publishers want to put on “their” stuff when it is not downloaded/viewed/used as they want it to be, and was used in the article to describe what the law was talking about.

Personally I consider games, music, videos, etc stuff that I own is open to copy as much as I want to and I do make copies of them. I don’t distribute it because that would be wrong. However if I was to go to a website that I know has an unauthorized copy of media and download it then I would have acquired an “illegal” copy of something.

“On the order of the authorities, access providers located in Switzerland need, in serious cases, to block access to web portals that feature obvious illegal sources by…”

The law as it is proposed in Switzerland is that there is no problem with files that content publishers consider illegally acquired, I wanted to make sure I undestood that correctly.

Oh and I didn’t answer the Branding question because you posted like it was a retorical question.

Chris Brand says:

Re: Re: Re:2 don't understand

The law is quite happy to have the those two identical files differ in legality alone, because it’s not (only) the file content that matters to them, but (also) how you obtained it (the law grants monopolies on specific actions, not on specific files).

A court wouldn’t just look at “what’s in this file” but also “how did you get this file”. This is actually one of the reasons why computers can’t tell you whether a file is legal or not – they don’t (in general) have visibility into the history (of course they’re also unable to make judgement calls about fair use and the like).

Anonymous Coward says:

Re: Re: Re:3 don't understand

A court wouldn’t just look at “what’s in this file” but also “how did you get this file”.

But “how I got the file” does not relate to the file at all, but to my actions. So it is not the file, that is “illegal”, but, potentially, my actions – you can make actions illegal, not things (you would not be charged for heroin, but for possessing it, you would not be charged for a file, but for illegally obtaining it).

Still – you cannot claim “illegality” of one file and not the other, if you cannot tell them apart. My action dos not leave a mark on the file.

Anonymous Coward says:

don't understand

‘I guess if you go to a site like illegaldownloads.com you should know you are getting illegal stuff and should still be procescuted for it. Where as if
you go to youtube it is up to the content provider to only post stuff they own or post as fair use so that others can watch it.’

No, Youtube and any cyberlocker like Mega is under the same umbrella, provided both only allow user generated uploads and comply with valid takedown requests.

The problem with making downloading from illegal sources illegal is that you can only rarely prove the legality of the source.

For instance, if I possess an mp3 file, it might originate from a dirty cyberlocker, my own cd collection or a friend’s cd.

In Switzerland, it’s legal to rip a cd borrowed from a library or a friend because copyright holders get compensated.

And same is the law in several other European countries.

Copying from an original source is legal, even though you don’t own the cd.

The only catch is that you can’t legally circumvent in order to make a copy.

Anonymous Coward says:

Re: don't understand

don’t forget the first part of my post though:

“I guess it depends on if the consumer knows they are taking an illegal copy. That right there is really hard to prove so it does seem better to be safe and say they are not held accountable.”

The part about prosecuting is conflicting with that first point I admit.

Anonymous Coward says:

>using something without permission is stealing.

This just simply isn’t true, in any jurisdiction or any field of human endeavor.

There’s a profound, fundamental distinction between TAKING and USING.

Your neighbor may USE your front yard as a shortcut to your other neighbor’s front door. Only an obnoxious jerk would even notice … at worst, it would be called “trespass”. But many people who had mortgages with Citibank know very well what “stealing” was.

Then there’s “borrowing to use”, which actually “takes” (for awhile) but returns–again, either socially acceptable or unacceptable depending on how greed-driven and antisocial your culture is. (Big-city folk might be surprised to see what farm-country folk would expect to be freely borrowed at need!)

Then there’s “learning” — getting a benefit from an idea that someone else had first.

In all these cases, the difference between them and “taking” is — the original squatter still has all the benefit of his property. Now keeping someone else from using their own property — or ideas! — COULD be considered theft (although the laws tend to call it something yet different.) But it’s more like theft, and like theft it’s completely different from all those other things which DON’T deprive the original squatter.

So a reasonable person might conclude that patent trolling IS theft–it is very much like theft, because it attempts to deprive the victim of any benefit of an original idea that he had. But just using?

No. Not even in the same wing of the law library.

I come from a culture where “sharing” is a virtue. I’ve spent my life sharing books, music, information, ideas … and I have learned how much more than a virtue it is. But it is not just a social, ethical, and religious GOOD THING. It’s also an economic good. How many books and CD’s — well, how many thousand books and CD’s — have I bought because I was able to be introduced to ideas in free venues–schools, public libraries, friends’ recommendations and libraries, books for sale but openly accessible for sampling? And although I have nothing to do with either the commercial pop music world, studies consistently report that the online way filesharers buy more music than the average.

Theft is wrong: sharing is not just a human right, it’s a human responsibility.

zip says:

But is Bittorrent legally considered "downloading" or "distributing"?

In the US, courts have interpreted laws (armed with draconian penalties) that were originally intended to target professional criminal bootleggers to be applied to typical suburban kids downloading a song or TV show via P2P. So ordinary people are treated basically the same as professional criminals — unless they use a hacked (no-upload) copy of the software, in which case their downloading activity is perfectly legal.

The irony of this legal structure is that people who don’t know they’re doing anything wrong face draconian punishment, while those who know perfectly well they’re breaking the law (and take simple steps to sanitize their illicit activity) get off scot free.

The Swiss surely must be well aware of P2P file sharing. The world’s first major criminal case took place in that country 10 years ago with the arrest and trial of the owner of Sharereactor, which was at the time the biggest file sharing site on the planet (and ironically, one that responded to copyright complaints).

Anonymous Coward says:

and if they are put on the ‘301 list’, i hope they take the same approach with that as with the sensible sharing attitude and ignore the fucking thing altogether! while they have in place sensible legislation, the most important thing is that any legal action will be of a civil nature, unless i have misread it. anyone with an iota of sense would recognise this as being the correct way to go, rather than the USA (and those it has forced to come in with it) to go down the criminal road!!

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