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The Italian law 248/2000:
a menace to software professionals

Associazione Software Libero

February 2001

Contents

• Contents
• Abstract
• Introduction
• When the stamp is needed
• What is written on the stamp and how to obtain it
• Definition of "medium"
• Definition of "computer program"
• Conclusions
• About this document ...

Abstract

This document deals with the problems arising from an amendment to Italian copyright law (September, 2000), which in addition to going against a subsequent European Community recommendation (February, 2001), poses a potentially serious threat to the activities of independent software developers and makes it difficult to legally distribute free software in Italy.

Please send any comments to mailto:<info@softwarelibero.it>.

Introduction

The Italian Parliament recently approved an amendment to copyright law. The new rules have been in force since September 18, 2000 as law 248/2000. The new mechanism is as yet unclear, but we suspect that it might hinder or even put a stop to the work of anyone producing software or using it in their business. The main problem of the law lies in the requirement for a compulsory stamp (the "bollino SIAE") on any physical medium containing computer programs (Art 181-bis, 1). This requirement adds to previous rules that consider any unauthorised copying of computer software a criminal offence (rather than simply a civil offence). As a consequence, possession of computer programs on non-stamped medium, either legally or illegally, may lead to a prison sentence.

The scope of the new law is not limited to software, and can also be damaging to other spheres of personal freedom. We will concentrate here on the issues of computer programs, as we consider them the most serious. It has been observed that the law, in fact, introduces a sort of tax on freely distributable software. We think that these concerns are valid, but the problem as we see it is much more serious.

Since we were not able to find any substantial commentary on this law on the net, we made our own research, by interviewing SIAE officers, Guardia di Finanza¹, Postal and Telecommunications Police, magistrates and copyright lawyers.

When the stamp is needed

Our sources, while sometimes agreeing on the injustice of the law, concur that the possession of any computer program on medium not marked with the SIAE stamp constitutes a crime in accordance with article 171-bis:

Whoever intends to make a profit ...for commercial or business purposes, from the use of ...computer programs contained on a medium not bearing the SIAE stamp, is subject to a penalty of imprisonment from six months up to three years and to a fine from 2500 to 15000 Euros.

When importing software from abroad, in order to promptly apply the stamp, the importer must notify the SIAE in advance about the entrance of the goods into state territory (Art. 181-bis, comma 6) As the importer is identified as the buyer, the need for the stamp applies even when an individual buys software from abroad for business use. A SIAE officer in Rome commented: "there’s no problem if you import a game on CD, but if it's for use it in your business you must have it stamped".

Since the law clearly states that the stamp is applied for the sole purpose of protecting rights related to intellectual works (Art 181-bis, comma 2), one would ask: "what if you are the author of the programs you own?". The answer, from almost all of our sources, is that "the medium must be marked if it is used for profit, regardless of whether the profit comes from the future commercialisation of the software, or for purposes otherwise related to one's work".

What is written on the stamp and how to obtain it

The SIAE stamp must contain enough information to identify the title of the work for which it has been requested and the name of the author, publisher, producer or copyright holder (Art 181-bis, comma 5). You can apply for the stamp in the main SIAE offices. We don't know as yet exactly which offices are authorised to issue the stamp: when we asked a local SIAE office, the officer stated that only Rome, Milan and Naples are authorised, but we verified that they can also be obtained in Florence. In any case, asking a local office is no good (to us, the officer replied: "it’s not our job to know, all I know is only out of personal interest"). Nor does the web site http://www.siae.it/ offer any help, as you always end up at the same "work in progress" page (hits made on January 21, 2001).

In practice, in order to obtain the stamps, you should go to one of the authorised offices, fill out a host of forms only available at the office premises, pay the dues, and come back after one to three weeks in order to get your coveted little adhesive rectangle of legality. Naturally this procedure is required for each and every medium owned or imported (to enable identification of the title ...).

Definition of "medium"

To identify the scope of the law, we tried to get a fuller explanation of just how "medium" is interpreted. A SIAE officer in Rome affirms that "medium" is the CD or the floppy disk, thus excluding the hard disk "for obvious practical reasons". He explicitly admitted that a software consultant may travel with a hard disk in his pocket, but not a CD or a floppy disk (yet denying to sign a declaration to that effect). As we expected, both the magistrate and the lawyer with whom we spoke refused to consider the hard disk as different from other mediums. They even suggested that software consultants carrying their own laptop for use on the client's premises should apply a SIAE stamp on the laptop itself.

In fact, the SIAE interpretation is not unreasonable: a hard disk contains hundreds of programs. For example, we run GNU/Linux on our computers, and there are over 800 software packages installed on each of them. Identification may be more straightforward for a proprietary operating system, but no one working with a computer has less than 10-20 programs installed on his machine. Because of that, the identification of the "title and author" of each and every program on a single stamp is just not feasible; even the idea of applying tens of hundreds of stamps on one product is not conceivable given the highly dynamic contents of a disk. A hard disk shares the same problem as a CD regarding the high number of programs, and has the same problems as a floppy with regard to dynamic contents, so in fact the "practical reasons" invoked by the SIAE officer should not be applied to hard disks alone.

In principle, paper medium could be affected too. When a program is written in an interpreted language, distribution "for profit" is possible on paper, slide or transparency. For example, it is common practice for a software consultant when teaching courses, to distribute and comment on a complete source (a couple of pages, often less) of a functioning program which is effectively usable. Every demo program distributed on a magazine or during a paid course (i.e. "for profit") apparently requires the SIAE stamp, under penalty of seizure of the unstamped material and imprisonment (Art. 171-bis, comma 1). To date, we have not collected legal opinions on the applicability to paper medium.

Definition of "computer program"

The main problem with the new law lies in the use of the term "computer program", not defined by the law itself nor by any other legal standard. These words have a sound meaning when dealing with intellectual works, because computer programs are generally protected by copyright just like any musical or literary work. However, the program (an abstract entity) has to be given material dimensions to enable the application of a stamp.

This law has obviously been written with the blinkered attitude, where "program" means "a very expensive CD, printed for mass market distribution and not legally reproducible". Only this sort of reasoning could justify the requirement for stamp application on "all mediums", given the difficulty of obtaining it. But freely redistributable programs do in fact exist: for example programs written for internal use in companies, which are repeatedly duplicated, programs used in computer courses, or free software programs, such as all the components of a GNU/Linux system. Also, programs exist which are "small", much smaller than the stamp itself. Some of the programs that we use in our everyday work are a few kilobytes long, even few lines of text, and many common utilities are small, like the popular Pkzip program. There are a number of programs that can be freely downloaded from the Internet to a user's hard disk; but this is a crime according to the new law.

The members of Parliament who approved the law admit that it was born under the pressure of strong lobbying by big software companies, intentionally ignoring -- and as a consequence making them illegal -- all programs and mediums that are not distributed through the usual commercial distribution channels. The official excuse is that programmers, in order to earn what they deserve, need to be protected from the illegal copying of software for personal use. However, the lobbyists that pushed the law are the very same software companies who recently issued a TV advert, almost disguised as public information, where the act of copying a computer program is depicted as one of the worst crimes out. This spot was later condemned as misleading and its further diffusion prohibited.

Non-profit use of programs does not require the stamp; however, several actions can be defined as "profit-making". The SIAE officer in Florence declares that free distribution of a demo is for profit, and thus requires application for the stamps. It may be conceivable that using a computer for browsing the web can be considered for profit, since it enables access to information useful for one's own work. So have we reached the point where even use of a network browser will require a stamp?

Conclusions

The mechanisms introduced by the new copyright law have the potential of paralysing or criminalising any conceivable business that uses computer programs. Compliance with the law in this respect is especially difficult. Law 248/2000 was intended as a stand against software piracy, but it now risks damaging the very authors it claims to protect. Independent programmers will incur unreasonable expenses and difficulties that will hinder their freedom of expression, while established software companies will have the chance of increasing their near monopolistic grip on users. The police have the right to inspect your office and seize material even if nobody has sued you for infringement, as the order of a judge is sufficient to take actions for this crime. It is not unlikely that Police forces will set up a nation-wide round-up in the future, to spread uncertainty and force literal application of the law to prevent further such crime.

Independent software businesses are the most damaged by application of the new law. We claim that its application should be suspended until its effects are seriously studied and a new law be written. The focus of the law should be the good of society at large, rather than the mere income of big software companies.

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