Colombian Student Facing A Minimum Of Four Years In Prison For Uploading An Academic Article To Scribd

from the yeah,-nothing-excessive-about-this-sort-of-enforcement dept

Upload a document to Scribd, go to prison for at least four years. Ridiculous and more than a bit frightening, but in a case that has some obvious parallels with Aaron Swartz's prosecution, that's the reality Colombian student Diego Gomez is facing. In the course of his research, he came across a paper integral to his research. In order to ensure others could follow his line of thinking, Gomez uploaded this document for others to view.

According to Gomez, this was a common citation practice among Colombian students.

The important thing is to make a correct citation, attributing researchers’ work by indicating their name and year of publication and, of course, not claiming the work of another researcher, but to recognize it and value it. Therefore, what we usually do is to reference the findings and make them available to those who need them.
The paper's author obviously disagreed and sued Gomez. But unlike civil lawsuits in the US, copyright-related lawsuits in Columbia carry with them the threat of imprisonment.
Under the allegations of this lawsuit, Gomez could be sent to prison for up to eight years and face crippling monetary fines.
To be clear, Gomez did not try to profit from the paper. He also wasn't acting as some sort of indiscriminate distributor of infringing works. But under Colombian law, none of that matters. But to really see who's to blame here for this ridiculous level of rights enforcement, you have to look past the local laws, past the paper's author and directly at the US government.
[Gomez] is being sued under a criminal law that was reformed in 2006, following the conclusion of a free trade agreement between Colombia and the United States. The new law was meant to fulfill the trade agreement's restrictive copyright standards, and it expanded criminal penalties for copyright infringement, increasing possible prison sentences and monetary fines.
More details on the awfulness of Colombia's law (spurred on by US special interests) are available in the EFF's earlier coverage. Colombia gave the US copyright industry everything it wanted in order to secure this free trade agreement… and then it just kept going.
Colombia passed a criminal reform bill in 2006 that enacted many of these provisions, but Bill 201 goes even further. Under it, copyright infringers could face harsh criminal penalties, whether or not the individual is aware of committing infringement. It sets up severe penalty provisions including a minimum prison sentence of four years and significant monetary fines.
This 2012 bill compounded problems existent in the 2006 free-trade agreement.
Like previous US FTAs, it misleadingly defines “commercial scale” to include non-commercially motivated infringement, forcing US trading partners to adopt the US legal standard.
This bill was hastily passed as a welcoming gift for President Obama, shoved through the legislative process in order to get out ahead of the administration's appearance at a Colombia-hosted conference. This deference to the US government could cost Gomez at least four years of his life.

While Colombia seemed very eager to take the worst parts of US copyright law (and make them even more terrible), it was less inclined to take any of the good.
Colombia does not have flexible fair use system like in the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and are narrowly tailored to some specific situations that are not at all applicable to the digital age. Therefore none of these will apply directly to his case even if it was done for educational purposes.
The only silver lining here is that the court still needs to consider two aspects before making its decision: mens rea and whether there was any actual economic harm to the author. On the first factor, it seems pretty clear Gomez didn't upload the document to purposefully "rob" the author of his earnings. On the latter, Gomez never made a cent from his infringing upload and actually took it down when he discovered Scribd was planning to charge unregistered users to download papers.

Beneath all of this lies the ugly reality of the academic research market. Just as in the US, plenty of useful information is locked up and inaccessible to anyone unable to afford the frequently exorbitant fees charged by various gatekeepers. Copyright's original intent -- "to promote the progress of science and the useful arts" -- isn't served by this behavior. Instead, it's deployed to further separate a large percentage of the population from knowledge. And in Colombia, it's being used to imprison someone actively "promoting the progress of science."


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Michael, Jul 28th, 2014 @ 7:58am

    Gomez could be sent to prison for up to eight years and face crippling monetary fines.

    We really have an obligation to increase our penalties here in the US to rise up to these new international standards.

     

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      That One Guy (profile), Jul 28th, 2014 @ 2:48pm

      Re:

      I wanted to click 'Funny', I really did, but US politicians using exactly that line would not be something that would surprise me in the least, given that's their favorite way to pass laws to appease Hollywood.

      'We need to change/add law X to uphold our international obligations, and harmonize the laws between our two countries' is practically the slime-ball politician mantra.

       

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Whatever, Jul 28th, 2014 @ 8:09am

    Mike Masnick just hates it when copyright law is enforced.

     

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    jackn, Jul 28th, 2014 @ 8:16am

    "The paper's author obviously disagreed and sued Gomez"

    Who is this author, they should be named for the future scholars.

     

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    That Anonymous Coward (profile), Jul 28th, 2014 @ 8:22am

    And locking these papers up means that someone with an idea they want to pursue are faced with paying a stupid amount of cash or not.
    I wonder how many underfunded researchers end up reinventing the wheel because they lack enough funding to see if someone already did it.
    How many new discoveries are delayed because the budget was eaten by journal access costs or rerunning an experiment that was already done?

    How does this benefit anyone but the gatekeepers?
    Once upon a time we might have needed them, with their scribes diligently copying and curating works. In the computer age why are we paying costs higher than what it took to have actual humans do the actual job?

    Even documents paid for with public funds are locked away from the people who paid for them, and the gatekeepers gleefully taking their cut and seeking a new way to get more out of it.

    Prison for sharing something.
    There was no economic gain, there was no economic loss, but we must crush human curiosity and the lessons taught in childhood that sharing is good.

     

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    Spaceman Spiff (profile), Jul 28th, 2014 @ 8:33am

    They are no better

    The current Colombian government is no better than the cocaine cartels they are trying to remove from power. The US is supporting the most egregious examples of "screw you people" that there could be - shame on you Obama!

     

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    An Academic, Jul 28th, 2014 @ 8:43am

    It appears from the article that the article author, not the publisher, sued. That's the most surprising bit in this article. As a researcher, I want to see my work distributed as far as possible. For my few articles published in non-open-access journals, I would welcome guerrilla postings all over the internet. Now if Elsevier (The Exxon-Mobil of Publishers) was in involved, this would make more sense.

     

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      jupiterkansas (profile), Jul 28th, 2014 @ 9:45am

      Re:

      Perhaps the author is acting on advice from their publisher?

       

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      That Anonymous Coward (profile), Jul 28th, 2014 @ 4:34pm

      Re:

      Sadly you can find people who act like this in every field.
      The gatekeepers make these claims about why you aren't making as much money and blame everyone but themselves and the antiquated policies.
      They start to believe that trillions of dollars are being stolen because someone saw the thing without paying Ceaser what Ceaser is due.

      Nevermind that this gets debunked, the people who hold the purse strings said that is why my check was so small this time so I need to support what they want.

       

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        Anonymous Coward, Jul 29th, 2014 @ 12:15am

        Re: Re:

        The gatekeepers make these claims about why you aren't making as much money

        Academic publishing is rigged so that the academics get nothing or pay to have their papers published. So the publishers would have to claim that piracy is why the academics have to pay more to be published.

         

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    Anonymous Coward, Jul 28th, 2014 @ 8:51am

    When reference Columbia it would be nice to know which Columbia: Columbia University, or British Columbia Canada, or the country of Columbia, or one of a half other different Columbias.

    One would suspect that Columbia University is not the subject but then again it is in NYC and it may have the authority to pass it own unique set of laws.

     

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      Rikuo (profile), Jul 28th, 2014 @ 9:17am

      Re:

      Given that this article talks about a free trade agreement between [a] Columbia and the US...I'd think they're talking about the country. You don't do free trade agreements with a territory considered part of your nation...and even if such a thing happened, it wouldn't be worded as between X and (Country Name here), because then that would implicate that X is not part of the country.

       

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      identicon
      Anonymous Coward, Jul 28th, 2014 @ 9:19am

      Re:

      It's pretty clear from the context of the post that they are referring to the country.

      University's and provinces don't enter into FTA's, countries do.

       

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      Noel, Jul 28th, 2014 @ 6:16pm

      Re:

      I guess it would be fairly unusual for Columbia University to sign an FTA with the US, as it would for a state of Canada (and not the whole country).

      There's also the small issue of spelling: ColOmbia (as written all through this article) is a country, while British ColUmbia and ColUmbia University are not countries.

       

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    identicon
    Anonymous Coward, Jul 28th, 2014 @ 9:09am

    This, people, is a prime example of why copyright infringement (at least the non-commercial variety) should be returned to and remain strictly a matter of civil law.

     

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    Anonymous Coward, Jul 28th, 2014 @ 9:36am

    'The new law was meant to fulfill the trade agreement's restrictive copyright standards, and it expanded criminal penalties for copyright infringement, increasing possible prison sentences and monetary fines.'

    every single 'free trade agreement', implemented by the USA has been done to enhance the protections for the entertainment industries and to screw the public at the same time! i'm trying to imagine what things will be like in a couple of years time, when the whole planet is run by the entertainment industries. think that's a daft thing to say? think about it. every government and law maker are implementing new laws, new legislation and/or ramping up old ones, just to please those industries. there hasn't been a single case of the industries doing anything themselves or even paying for it. everything is done out of tax payers money. on the way to giving this total control, governments that have been elected to do and give their people the best they can, the best protection they can, but are turning their backs on the citizens in preference to the entertainment industries! can anyone tell me what the planet is going to benefit from by having these industries in charge of everything, everywhere? they are suing, bankrupting, imprisoning and destroying people, all with the governments blessing! what is being gained in return? as far as i can see, absolutely fuck all!! just tell me how an industry that builds itself on make believe is going to be of any use whatsoever, when the next war happens, or the next financial meltdown? from what i can see, there will be no benefit at all!! you can bet that they will benefit as they want to get the internet under their grasp as well so they can then decide who can have what websites available, who can access them and at what cost because once they have that there will be charges for everything to everyone and the only downloading done will be under their constant supervision! the world is gonna lose out dramatically but those in governments and law making roles atm will be looked after fine in payment for being so understanding!!

     

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    Michael, Jul 28th, 2014 @ 9:49am

    So now if you live Columbia, you can work for a drug lord as a mercenary or kidnap and kill people with impunity, but you are f***ed if you upload a paper without the proper authorization.

    Nice.

     

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    PRMan, Jul 28th, 2014 @ 12:00pm

    Why?

    Why are people so reluctant to name and shame these days? He's choosing not to name the paper. Why?!? This guy is ruining your life over nothing.

     

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    Rekrul, Jul 28th, 2014 @ 3:13pm

    Copyright's original intent -- "to promote the progress of science and the useful arts" -- isn't served by this behavior. Instead, it's deployed to further separate a large percentage of the population from knowledge.

    "Copyright's original intent -- "to promote the progress of science and the useful arts" -- isn't served by this behavior. Instead, it's deployed to further separate a large percentage of the population from their money."

    FTFY

     

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    charliebrown (profile), Jul 29th, 2014 @ 8:46pm

    Not Surprised

    Australia did a "Free Trade Agreement" with the US in 2005 and suddenly our copyright law expanded by 20 years plus they almost killed our Pharmaceutical Benefits Scheme.

    So excuse me if I feel like saying "Fuck You" to the American corporations and government. Don't worry, Americans, I say it to ours too!

     

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