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."

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


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  1. identicon
    Anonymous Coward, 28 Jul 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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