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Problematic distribution of P2P clients in France


I don't know if you're aware of the recent adoption in the First
Chamber of a worrisome amendment about distribution of (at least) P2P
clients. This was inserted in a transposition of the EUCD directive :

I'll try to outline the amendment below, but keep in mind that IANAL,
and I am not in any way certified to translate legal text. Here is the
offending bit (Article 12 bis) :

« Sanctions up to 300 000 € and three year imprisonment shall be
required in the following cases :
1° To willingly edit, distribute to the public, or inform the public
about, in any form, a device[2] whose obvious purpose is to permit
unauthorized distribution of protected works 
2° To willingly, also through advertising, incite to use of software[3]
mentioned in 1°

These provisions are not applicable to software destined to be used for
collaborative work, for research purposes, or for exchange of files
which are not subjected to copyright-resulting[4] remuneration. »

For french-speaking readers, the draft[5] is here :

Now, since Debian distributes many P2P clients in main, I fear this
could become problematic -- are those to be considered as a device as
mentioned in 1°, or as software used for exchange of unprotected files
as defined in the second paragraph ?

If courts were to go for the first interpretation, my opinion is that
french Debian (and other distributions) mirrors could be endangered.


[1] Note that this is only the directive, local transpositions may be
much more restrictive
[2] The French "dispositif" has a broader sense than the English
"device", meaning not only physical devices, but also immaterial ones,
such as software -- that's my understanding. 
[3] Note that 2° says "logiciel" (software), where 1° says "dispositif"
[4] "droits d'auteur" in french law is more than simple copyright, but
as far as remuneration is concerned, I think the meaning is preserved.
[5] This draft still has to pass through the second chamber before
becoming applicable law -- there is however little chance that this
article will be removed.


Simon Vallet
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