One advantage the patent system clearly does have over the regulatory state is that you generally can’t go to jail for patent infringement, as you can for selling lobster tails that are the wrong size and packaged in the wrong kind of containers. Over at Ars Technica, I’ve got a story about legislation in Europe that could have taken the first step toward changing that. Fortunately, the good guys scored a partial victory by getting patents removed from the scope of the second Intellectual Property Rights Enforcement Directive.
However, there’s still some scary stuff in there. “Inciting” copyright infringement can still be a criminal offense, opening the door to jailing the creator of the next YouTube or MP3 player. Moreover, it’s a criminal offense to infringe other “intellectual property rights” on a “commercial scale.” These include “geographical indication” rights, meaning that a winemaker from outside the Champagne region of France could not only be sued but thrown in jail for selling his sparkling wine as “champagne.”
What’s not clear is why any of this is necessary. Piracy isn’t an especially serious problem in Europe, and the authorities already have plenty of weapons in their arsenal. Politicians have gotten in the worrisome habit of throwing people in jail just to prove that they’re serious about whatever the problem-of-the-week happens to be.