Diego Gomez Is Safe, But His Legal Battle Demonstrates How Copyright Policy Creates Dangers To Research

from the this-is-a-problem dept

In 2011, Colombian graduate student Diego Gómez did something that hundreds of people do every day: he shared another student's Master's thesis with colleagues over the Internet. He didn't know that that simple, common act could put him in prison for years on a charge of criminal copyright infringement.

After a very long ordeal, we can breathe a sigh of relief: a Colombian appeals court has affirmed the lower court's acquittal of Diego.

How did we get to the point where a student can go to prison for eight years for sharing a paper on the Internet?

Diego's case is a reminder of the dangers of overly restrictive copyright laws. While Diego is finally in the clear, extreme criminal penalties for copyright infringement continue to chill research, innovation, and creativity all over the world, especially in countries that don't have broad exemptions and limitations to copyright, or the same protections for fair use that we have in the United States.

In another sense, though, the case is a sad indictment of copyright law and policy decisions in the U.S. Diego's story is a reminder of the far-reaching, worldwide implications of the United States government's copyright law and policy. We failed Diego.

How did we get to the point where a student can go to prison for eight years for sharing a paper on the Internet? The answer is pretty simple: Colombia has severe copyright penalties because the United States told its government to introduce them. The law Diego was tried under came with a sentencing requirement that was set in order to comply with a trade agreement with the U.S.

International trade agreements are almost never good news for people who think that copyright's scope and duration should be limited. By establishing minimum requirements that all countries must meet in protecting copyrighted works, they effectively create a floor for copyright law. It's easy for signing countries to enact more restrictive laws than the agreement prescribes, but difficult to create less restrictive law.

Those agreements almost never carry requirements that participating nations honor limitations on copyright like fair use or fair dealing rights. Just this week, a coalition of 25 conservative groups sent a letter to the U.S. Trade Representative (USTR) arguing against the inclusion of any provision in the North American Free Trade Agreement (NAFTA) that would require countries to include balanced copyright limitations and exceptions such as fair use, as EFF and other groups have suggested. Countries like Colombia essentially get the worst of both worlds: strong protection for large rights-holders and weak protection for their citizens' rights.

As we've pointed out before, it's depressing that someone can risk prison time for sharing academic research anywhere in the world. If open access were the standard for scientific research, Diego would not have gotten in trouble at all. And once again, it's the actions of countries like the United States that are to blame. The U.S. government is one of the largest funders of scientific research in the world. If the United States were to adopt a gold open access standard for all of the research it funds—that is, if it required that research outputs be made available to the public immediately upon publication, with no embargo period—then academic publishers would be forced to adapt immediately, essentially setting open access as the worldwide default.

EFF is delighted that Diego can rest easy and focus on his research, but unfortunately, the global conditions exist to put researchers all over the world in similar situations. No one should face years in prison for the act of sharing academic research. Making the changes in law and policy to prevent stories like Diego's from happening again is a goal we should all share.

Republished from EFF's Deeplinks blog.

Filed Under: academic research, colombia, copyright, diego gomez, knowledge, learning

Colombian Grad Student Finally Cleared Of Criminal Charges For Posting Academic Article Online

from the copyright-gone-mad dept

Three years ago, we brought you the horrifying story of Diego Gomez, a grad student in Colombia. While working on his own research, he relied on and cited a paper that he couldn't find anywhere else online. As was common practice in Colombia, Gomez uploaded that paper to Scribd so that others could follow his own work and understand his citation. As a research practice, this is a really good idea. Under copyright law, however, it gets stupidly problematic. And it was made much more stupidly problematic by the insane copyright law passed in Colombia -- under pressure from the US -- which made this a criminal act for which Gomez faced up to 8 years in prison along with monetary fines.

Again, he absolutely did upload someone else's paper to the internet -- but this was an academic paper, it wasn't for Gomez's own profit, but for perfectly reasonable academic purposes, to make sure people were better informed. Not only that, but as soon as he found out the paper's author was unhappy, he deleted the paper from Scribd. And yet he's spent the past few years dealing with criminal charges over it. Thankfully, just this week Gomez was cleared of any wrongdoing. It just cost him four years of absolute hell. And it's not totally over yet. While the judge has given a "not guilty" verdict, the prosecutor has already announced plans to appeal.

"I have been cleared. I am innocent," a delighted Gómez said after the verdict. "When I received the news, after 4 years with so much uncertainty, which is an obstacle in personal and professional life, that was a great happiness. However, knowing that the prosecutor appealed brings uncertainty back."

EFF has been heavily involved in this case, and note that it shows one of the many problems with countries ratcheting up punishments for copyright infringement often under the guise of "complying with international agreements.":

Diego’s story also demonstrates what can go wrong when nations enact severe penalties for copyright infringement. Even if all academic research were published freely and openly, researchers would still need to use and share copyrighted materials for educational purposes. With severe prison sentences on the line for copyright infringement, freedom of expression and intellectual freedom suffer.

Diego’s story also serves as a cautionary tale of what can happen when copyright law is broadened through international agreements. The law Diego was prosecuted under was enacted as part of a trade agreement with the United States. But as is often the case when trade agreements are used to expand copyright law, the agreement only exported the U.S.’ extreme criminal penalties; it didn’t export our broad fair use provisions. When copyright law becomes more restrictive with no account for freedom of expression, people like Diego suffer.

Indeed. I know that we get a fair amount of pushback from some in the copyright industry whenever we talk about the free speech or chilling effects impact of overzealous copyright enforcement. Time and time again we're told that these are "anomalies" or that such things are impossible, because why would anyone ever use copyright to stifle someone's speech. However, I can't even imagine the horror that Gomez has gone through for the past four years, in which he was literally facing being locked up for years and fines for being a good academic. That's insane -- and so is any copyright law that would allow this to happen.

The fact that Colombian prosecutors aren't yet willing to drop this case is even more upsetting and concerning. What possible reason do they have for thinking that this case is worth pushing forward like this?

Filed Under: academic research, colombia, copyright, diego gomez

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."

Filed Under: academic publishing, academics, colombia, copyright, criminal, diego gomez, fair use, free trade, free trade agreement, international obligations, knowledge, sharing