Category: E-biz

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Thepiratebay.org case. An Italian Court affirms a dangerous principle of law

N.B. Background information for this post are available here. ?

The Bergamo Court has overruled the preemptive seizure order with a decision that, instead of solving the problems arising from the first decision, creates worst issues. The Bergamo Court, in fact, has overruled the seizure, but only on the legal basis that “seizure” cannot be interpreted as “traffic hijacking”.

But the court did not, as it should have done, evaluate first of all the lack of Italian jurisdiction. By not doing so, the Bergamo tribunal has created a dangerous case law that, by reciprocity, allows any foreign magistrate to investigate and take to court an Italian citizen, with the additional absurdity that even in the absence of any evidence that a crime has been committed, a legal prosecution can be based on hypothetical “statistic calculation”.

Furthermore, by asserting the validity of the public prosecutor investigation, the Court has de facto established the automatic liability not only of internet providers, but also of search engines, and the possibility of using, as an investigative tool, data and information with no solid ground.

And also, by saying that even if preemptive seizure has been wrongly enforced , it is ?in theory compatible with ?sect.14 D.LGV 70/20003 (EU E-commerce directive implementation, dealing with ISP liability), the Court of Bergamo on the one hand allows “owners of ideas” to push for an additional and barbaric copyright law amendment while, on the other hand, it reaffirms an obvious error of interpretation of law by affirming the role of ISPs as “sheriffs of the net”.

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EU Censorship Italian Style…

Here we are. Words are spreading that EU will push to enforce “censorship on words”. On 10 Sept., 2007 Reuters quoted a statement made by EU Commissioner Franco Frattini (Italian, sadly) who claimed:

 ?I do intend to carry out a clear exploring exercise with the private sector … on how it may be possible to use technology to prevent people from using or searching dangerous words like bomb, kill, genocide or terrorism ?.

I can think of no better comment on that, but the one made by ALCEI:

Mr. Frattini’s suggestion is unacceptable, extremely dangerous and a serious threat against free speech. The “internet-teaches-how-to-make bombs” nonsense has been around since the net’s early years. Along with “copyright infringements” and misrepresented child protection urges – as ALCEI denounced over ten years ago. The “internet-bomb” issue has always been one of the excuses to invoke censorship and repression.

It is obvious – and largely proven by facts – that “filtering” or “prohibiting” words or concepts is totally useless against criminals, while it turns into a weapon to kill freedom of information and expression. Preventing all citizens from discussing controversial topics doesn’t reduce violence, murder or terrorism.

Peter Fleischer’s answer (Google’s Global Privacy Counsel) – as quoted by the Italian newspaper Repubblica.it – is not less concerning:

“There are a lot of reason why sombody might want to search on the Internet a word like “genocide”, for teaching purposes, say. According to Fleischer, the problem is to prevent some information to be released on line – such the bomb-making-how-to”. “But if a page is no the web” – he said – “Google must be allowed to search for it” (Translation from Italian by Andrea Monti. Please check the link above for the original text.)

It seems that Google might cope with censorship, as soon as the net is not affected.

Am I wrong?

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Iphone unlock might be legal in Italy

Iphonesimfree announces the availability of a software able to unlock Apple’s Iphone so that it can be used with any GSM operator wherever in the world. The first question that comes – then – is a legal one: is this breaking any law?

Of course, in Italy there is still no case law directly related to Apple’s Iphone, but a precedent ruling of the Criminal Court of Bolzano dated Dec. 31, 2004, stated that as soon as you are a legitimate buyer of a Playstation, you have the right to hack it because it is a general principle of law that proprietor can do whatever he wants with a purchased good.

Then, it is possibile to conclude that if an Iphone is actually purchased (and not rented of leased by the mobile operator, that in this case would remains the sole “proprietor”), Iphone unlock should be perfectly legal, as the selling of Iphonesimfree software.

At least in Italy.

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“Certified e-mail” mandatory by law?

Rumors say that mr. Bersani (DS) currenty Minister of economic growth, is pushing to make “certified e-mail” use mandatory for companies and professionals. Confirmation came when the Parliament rejected – de facto – the proposal, by making certified e-mail usage an option thanks to an amendment proposed by a leftist MP, Maurizio Acerbo (Rifondazione Comunista).

“Certified e-mail” (a borbonic and bureaucratic tech-crap) is a method to give “legal value” and “certain timestamp” to an e-mail message. There are plenty of ways to achieve this result with a minimum economic and technical effort, but Italy choose the opposite.

Should Mr. Bersani atteimpt be succesful, it would have been an EU forbidden State’s support to private companies since only a couple or so of big entities (namely Postecom and Infocamere) would have had substantial benefit from an artificially created market-niche.

Here is (Italian only) the Parliament session trascription addressing the issue.