THE COPYKAT

STORING INFRINGING GOODS IN WAREHOUSES, CRIMINALLY ACTIONABLE- RULES SWEDISH SC

The Supreme Court of Sweden has reportedly, post a CJEU referral, confirmed in a recent case that storage of infringing goods with a view to selling the same may pave the way for both kinds of liabilities- civil as well as criminal. This case has been reported in detail by IPKat. The CJEU had, having established that storing counterfeit goods falls within the scope of Article 4(1) of the InfoSoc Directive, left it for the Swedish courts to determine the question of criminal liability. Due to this clarification, the Swedish SC held the scope of Section 2 and 53 of the Copyright Act to include storage of goods, for commercial purposes within the scope of the distribution right. Hence, an intention to distribute has been held to be sufficient to establish Criminal Liability. More can be read upon this here, here and here.

STAIRWAY TO HEAVEN COPYRIGHT CASE TO BE REHEARD BY THE APPEALS COURT!!

Very interestingly, it has been reported by The Rolling Stones magazine that Led Zeppelin’s Stairway to Heaven will be reheard by an 11-judge panel in the 9^th US Circuit Court of Appeals. The question raised all importantly in this dispute is whether the rock and roll band plagiarized its opening riff from Spirit’s 1968 song called “Taurus”. Last year, a decision was given by the US court of appeals, wherein the case was remanded for a new re-trial due to erroneous instructions given to the jury – which had decided in favor of the defendant. Due to sufficient proof of “substantial access” to Spirit’s work, it was held that jury instruction on the inverse-ratio rule was inappropriate. For a detailed analysis of this, one can read this informative post on Spicy IP. Holding a lack of substantial similarity, the jury had in 2016, ruled that there was no Copyright infringement. This re-trial will bring a number of important issues, regarding Copyright Infringement in musical works in light. The legality and viability of the inverse ratio rule is hopeful to be discussed at length in this trial.

PEPE THE FROG COPYRIGHT DISPUTE SETTLED!!

As covered in the last edition of the CopyKat, the Pepe the frog Copyright infringement suit has been doing the rounds for a while. However, Infowars has agreed to settle this dispute by paying $15,000 to the creator of the cartoon. The creator of Pepe the Frog – Matt Furie, had sued Infowars over alleged similarity and use of this character. The lawyer for InfoWars has reportedly stated that they were sued for millions initially, but they have agreed to settle the matter upon payment of an honest licensing fee which has been determined to be $15000. More can be read upon this on the reporting website Channel 3000.

TEXAS APPEALS COURT HOLDS THAT COPYRIGHT INFRINGEMENT IS NOT “PROPERTY TAKING”

As the government is immune from copyright infringement claims in the United States, Jim Olive a photographer, intending to claim compensation for the use of his photograph, argued in the Texas district court that infringing his copyright amounted to taking away his property which is actionable. Olive had sued The University of Houston, for the alleged taking, under the US constitution. The claim was concerned with a photograph clicked by Olive from a helicopter in 2005. Such use by the University was discovered 3 years later by Olive who was seeking just compensation for the unlawful taking. The question of enforcement of Copyright against government enterprises is an issue, wherein the legal authority is divided and scant. The federal district court, however, had held in a patent infringement suit that such infringement does not amount to property taking. No constitutional right has been established to be violated in this case – was held by the court. Not only does this gives the state complete immunity against Copyright infringement claims, it creates a bizarre situation wherein the State can infringe any person’s work without a claim for compensation being available. It will be interesting to see how the further Appeals court takes on this decision. More on this can be read here. The ruling can be found here.

COPYRIGHT DISPUTE OVER ABORIGINAL FLAG

As reported by the World IP review, the exclusive rights holder for the flag had issued a cease and desist notice to aboriginal-owned businesses using the flag sign and design on their products for commercial purposes. The flag in question has been designed by artist Harold Thomas, to recognize and protest for land rights and as a symbol of the race of the Australian aboriginals. A copyright was granted for the same in 1997. Normally, a flag representing a community is held to be in the public domain, however, an exclusive right has been granted herein. There is a worldwide discussion on who is to be given the ownership of the flag and the community members are actively involving themselves in this discussion. A change.org petition started by Spark Health, whose brand Clothing the Gap raises money for Aboriginal health, states: “This is not a question of who owns the copyright of the Flag. This is a question of control.” It will be interesting to see how the government and the court take this matter ahead.

This CopyKat by Akshat Agrawal

Active provider, criminal sanctions: the Bajatetodo case in Spain

The 1709 Blog is delighted to host this guest post from our friend Revital Cohen (Baker & McKenzie, Barcelona) on a recent Spanish ruling. This is what she writes:

Active provider, criminal sanctions: the Bajatetodo case

The Criminal Court of Appeal, Castellón, has recently upheld a first instance ruling [on which see the 1709 post here] which imposed a fine of 21,000 euro and a 18-month prison term on the webmaster of www.bajatetodo.com for providing clickable links to protected copyright works which included movies, music, software and games.

The defendant was held liable under Article 270 of the Spanish Criminal Code, by which it is a criminal offence to reproduce, plagiarise, distribute or publicly communicate an artistic work with lucrative intent and without the authorisation of the right holder.

The lucrative intent of the webmaster-appellant was held unquestionable by the Court of Appeal, who received a substantial financial benefit directly attributable to the infringing activity (eg, from advertising and assignment of users' accounts to third parties).

As for the issue of liability, the webmaster claimed he was eligible to benefit of the [very Spanish] linking safe harbour provision of Article 17 of the Spanish Act No 34/2002, which implemented the e-Commerce Directive 2000/31. Going beyond the three safe harbours explicitly listed in Articles 12, 13, and 14 of the e-Commerce Directive, the Spanish provision implements a shield from liability dedicated to linking providers who are not actually aware of the unlawful nature of the linked contents or who, after becoming aware of it, promptly act to remove the link.

The Court of Appeal rejected the webmaster's defence, observing that the bajatetodo.com website did not simply provide links to unlawful contents, but also engaged in the selection, ordering and indexation of the instruments to access and locate them. Thus the webmaster's activity went far beyond what is conceived as a mere [neutral and passive] intermediary role.

Citing the Court of Justice of the European Union decision in Svensson [commented on by the IPKat here], the Court added that the provision of clickable links to protected works constitutes an unauthorized act of communication to the public as they address an indeterminate and large number of new recipients, thus amounting to copyright infringement and to the webmaster's criminal liability.

The Castellón Criminal Court of Appeal decision confirms a significant change of direction in Spanish case law. Indeed, Spanish courts had for long time ruled that the act of arranging and providing information about unlawful files available in P2P networks merely facilitates the downloading of infringing contents [see, for instance, the Sharemula and the Pablo Soto cases, the latter discussed on the IPKat here]. Such activity had thus always been considered to be a mere intermediary role sheltered by the linking safe harbour provided by Article 17 of the Spanish Act No. 34/2002.

Although Spanish case law was based on the assumption that the owners of P2P websites could not be held criminally liable since they do not directly engage in acts of communication to the public, the Castellón Criminal Court of Appeal stressed that this is no longer the case, which appears to be in line with the recent reform of the Spanish Intellectual Property Act [on which see the earlier IPKat post here], which expressly provides that administrative proceedings can be initiated against those who facilitate links to copyrighted work provided that they are not limited to a mere neutral intermediary activity. 

Reading, Writing and Arrest-matic as PIPCU strikes three

This blogger received a press release today which makes fascinating reading.  It runs like this:

New Police Intellectual Property Crime Unit (PIPCU) makes third arrest

Detectives from the Police Intellectual Property Crime Unit (PIPCU) have arrested a man at his Reading home today on suspicion of operating a website that was illegally selling music albums, singles and films. This early morning operation, which followed a referral from PRS for Music, is the third arrest made by City of London Police's Police Intellectual Property Crime Unit (PIPCU) since its launch last month.

The 33-year-old man is believed to have been using a website to sell discs containing music and films, which he does not hold the copyright licence for, for a small fee of only a few pounds. Each disc can contain up to 40 music albums and is estimated to be worth hundreds of pounds. The man was taken to a local police station for further questioning by PIPCU officers and subsequently an agreement was reached to transfer the control of the website to City of London Police.

Detective Inspector Rob [an unfortunate choice of forename for a policeman involved in ant--theft activities?] Stirling, from PIPCU, said:

“Today’s arrest forms part of just one of the many investigations PIPCU is currently pursuing. Since the launch of PIPCU we have seen a wide range of businesses come forward with referrals for the unit and today’s operation shows how this information can swiftly be turned into live investigations and arrests. We urge any UK organisation who believes they may be victim to intellectual property crime in the UK or overseas, to get in touch and submit evidence to the unit so we can get right to work.”

A spokesperson for PRS for Music said:

“We welcome the establishment of the new Police Intellectual Property Crime Unit (PIPCU) and will be working closely with them to ensure that member’s rights are protected. Today’s action is a positive step forward in tackling those individuals and companies who profit from the theft of their music.”

The Police Intellectual Property Crime Unit (PIPCU) has been set up to protect UK industries that produce legitimate, high quality, physical goods and online and digital content.

The operationally independent unit is initially being funded - £2.56m over two years [£2.56m is a derisory sum for an operationally independent unit, unless it can rely on PRS for Music, FACT and other bodies to do its investigations for it] - by the Intellectual Property Office, which is part of the Department for Business Innovation Skills [not quite: it's the Department of Business, Innovation & Skills ...].

In the next two years PIPCU will be working with a wide range of national and international partners from public authorities and private industry to build a comprehensive UK policing response to the threat of online intellectual property crime.

The unit will also be focused on influencing online behaviour by site owners, service providers and consumers through education, prevention and enforcement activity, and providing offenders where appropriate with opportunities to accept restorative justice.

To find out more information on PIPCU or to make a referral just click here.

This blogger wonders what would have happened to the 33-year old man from Reading if PIPCU hadn't been invented. Would he not in any event be prosecuted?

Linking Site Operator Convicted by French Appeals Court

This summary is not available. Please click here to view the post.

Criminal copyright infringement: prison for IMAGiNE members

Further to my post last week noting that the EU and Canada are still in negotiations as to whether camcording should be subject to criminal provisions under CETA (Canada is for, the EU against),  it seems appropriate to mention a case of "capping", which is similar to camcording but involves going to a cinema and recording the audio rather than the audiovisual content of the film being shown.

On Friday of last week, two men were sentenced to prison in the US for their roles in the distribution of illegal copies of films online, which involved capping.

The men, Lambert and Lovelady, are members of the Internet piracy group IMAGiNE, which is said by the prosecution to have had the goal of becoming the "premier group for releasing online copies of movies that were still in theaters". Between September 2009 and September 2011, along with others from the group, Lambert and Lovelady went to cinemas and recorded the audio track to films. They then edited the track to each film and combined it with an illegal video file (obtained online) to create the full film, which they then uploaded and shared with thousands of IMAGiNE group members.

Lambert and Lovelady pleaded guilty to conspiracy to commit criminal copyright infringement earlier this year, and how now been sentenced to 30 months and 23 months in prison respectively. In addition they each face three years of supervised release as well as fines of USD$449,514 and USD$7,500 respectively in restitution. Two other members of the group have also pleaded guilty and are due to be sentenced in the near future.

The sentences are apparently part of the joint effort of the US Justice Department and the US Immigration and Customs Enforcement to crack down on online copyright infringement and will hopefully serve as a deterrent to others tempted to make a fast buck using a camcorder or dictophone.

Karaoke hoarder becomes first Scottish file-share convict

Procurator Fiscal:
"Law and honour"

Via the ever-helpful Hector MacQueen comes news of a media release from the other side of Hadrian's Wall, issued earlier today by the Crown Office and Procurator Fiscal Service, Scotland. It reads as follows:

"FIRST PERSON IN SCOTLAND CONVICTED OF ILLEGAL MUSIC FILE SHARING

Anne Muir, 58, has become the first person in Scotland to be convicted for illegally sharing music files online. Muir pleaded guilty at Ayr Sheriff Court last month to a contravention of section 107(1)(e) of the Copyright, Designs and Patents Act 1988. Muir, from Ayr, admitted to distributing £54,000 worth of copyrighted music files by making them available to others via a 'peer-to-peer' file sharing application.

Following an initial investigation by BPI (British Recorded Music Industry) and IFPI International Federation for the Phonographic Industry), a formal complaint was made to Strathclyde Police. Officers subsequently obtained a search warrant for her home at Gordon Street, Ayr, and seized vital evidence, including computer equipment.

This is the first conviction of its kind in Scotland and is particularly significant to the music industry.

District Procurator Fiscal for Ayr, Mirian Watson, said:

"Intelligence gathered by BPI and IFPI revealed that Anne Muir was a prolific user of a particular file sharing network based in the UK. Illegally flouting copyright laws is tantamount to theft and not only deprives legitimate companies and artists of earnings, but also undermines the music industry as a whole. We will continue to work effectively with law enforcement in this area and to apply our robust prosecution policy."

Sentencing has been deferred until 31 May at Ayr Sheriff Court".

The BBC has supplied further details. Muir's lawyer Lorenzo Alonzi is reported as saying that his client, an auxiliary nurse at Ayr hospital, had not used the network for any financial gain, but to build up her self-esteem after suffering from depression for a number of years:

"Mrs Muir was not in any way trying to distribute on a large scale, she had a very big quantity of these files because she was hoarding -- a symptom of a severe obsessive personality disorder that she suffers from. She has, for many years, suffered from bouts of depression, which causes her to have extremely low self-esteem."

Her haul consisted of 7,493 digital music files and, truly depressingly, 24,243 karaoke files.

Much will depend on how the court treats Muir when it comes to the sentencing.  A low sentence will be seen as no more than a slap on the wrist and as a message that it's not worth prosecuting file sharers; a high one will make her into a martyr and can result in poor publicity for the copyright-reliant industries.  The court may have a tough job getting the right balance, particularly if Muir's mental state is a major issue.

Macedonia gets tough with infringers, collecting societies -- and theatrical producers

Levies are to be paid to artists
for use of their copyright works

The new Law on Copyright and Related Rights for Macedonia -- the former Yugoslavian bit rather than the current Greek bit, that is -- came into force on 8 September, as part of that country's efforts to bring its IP laws in line with the rest of the European Union, which it aspires to join (Macedonia applied in 2004 and became an official candidate in 2005).

The new law, in accordance with the EU IP Enforcement Directive 2004/48, treats copyright infringement as a criminal offence [this might surprise some readers, who only view the Directive as having civil application, but recital 28 of the Preamble states "In addition to the civil and administrative measures, procedures and remedies provided for under this Directive, criminal sanctions also constitute, in appropriate cases, a means of ensuring the enforcement of intellectual property rights"]. For this crime, the law provides a prison sentence of six months to five years for natural persons, and a fine for legal entities. The court is also given the power to order copyright infringers not to continue their business activities.  According to the 1709 Blog's sources,

"The new law is more precise and more structured than the previous one. The new regulations are meant to de-monopolize copyright collectives, which guarantee more effective protection and enforcement of copyrights. So far, in practice, a single copyright collective for authors and composers of musical works had a monopoly in copyright protection [It would be good to know more about this move and to place it in the context of the European Commission's current review of collecting society practices].

The law also abolishes copyright protection for theatrical producers. This change was made in accordance with comparative practices, which showed that these copyrights are considered most abstract and are not recognized in most legal systems [We'd love to know more about this.  Can anyone enlighten us?].

The new copyright law also sets more realistic copyright levies that should be paid to artists for use of their copyright works by third parties, and it clearly lists all possible cases of free use of copyright works".

Source: "New Macedonian Copyright Law Treats Copyright Infringement as Criminal Offense", PETOŠEVIĆ, 29 November 2010

Ignorance of the Law, an Excuse?

Throughout my childhood my father used to tell me, “Ignorance is no excuse for the law.”  It didn’t matter whether I was jaywalking or learning the hard way that glass jars of pickles don’t bounce; ignorance was no excuse.  Well it looks like there may be one time when ignorance is an excuse.  But I’m in doubt.

Criminal Charges under US Copyright Act Dropped

Many readers may have been following the USA v. Crippen case on other sites.  - Wired has a fairly detailed running account of the case. – This is the case in which California resident Matthew Crippen was criminally charged for violations of the US Copyright Act.  It was to be the first criminal case addressing a violation of the Copyright Act’s restriction against circumvents technical protection measures (TPMs) designed to protect copyrighted works.  “Was” because this past week the prosecution dropped the charges.
The many reports on the prosecution’s decision list a number of factors leading to the decision to drop charges.  Rumors of prosecutorial misconduct and concerns about the jury learning of crimes committed by the prosecution’s witnesses are two of the reasons mentioned.  (See Wired, above, and TechSpot for more on these reasons.)  But it seems like the main reason, which is related to both of these, is Judge Gutierrez’s decision that the prosecution would need to prove that Crippen knew he was violating the law.  (“The government said it would have dropped the case if that more onerous standard was required.” Wired.)

Looking for “Knowledge”

I’m still trying to figure this one out.  According to Wired (specific article link), “Gutierrez ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.”  Maybe there’s a nuance that got missed or misinterpreted somewhere between the judge and Wired.
Crippen was modifying X-Boxes, allegedly so that they would play pirated games.  From what I can gather, the statute Crippen was charged for violating was 17 USC 1201.  I am not sure if it was part (a) for “circumventing a technical measure” or part (b) for “circumventing protection afforded by a technical measure.”  However, the rest of the provisions in each section are parallel so we can look into the knowledge element without knowing with which specific provision Crippen was charged.

Subsections (A)

The first requirement, in § 1201 (a)(2)(A) and (b)(1)(A), is that the main purpose of the service be to circumvent a measure that effectively controls access to the work.  This could have a  knowledge element, requiring the defendant to know that the changes he was making would give access to works that were previously not accessible.  But knowing you’re getting access to something you couldn’t access before is not the same as knowing you are breaking the law.  So our knowledge of committing a crime being an element isn’t here.
-- NOTE: There’s a number of elements within this each Subsection.  I am only looking at potential knowledge elements.  For a great in-depth look at each element of the crime, see this post on bunnie studios by someone who was called as an expert witness in this case. --

Subsections (B)

The next subsection, (a)(2)(B) and (b)(1)(B), requires that any commercially significant purposes aside from allowing access to previously restricted items are limited.  No knowledge element there.

Subsections (C)

The last subsection requires that the service be marketed for use in circumventing a TPM.  This requires the same sort of knowledge element as subsection (A), the knowledge that the service is providing access to restricted works.  Again, there doesn’t appear to be anything suggesting that in order to violate this law the person circumventing the TPM needs to know that circumventing TPM is illegal.

So Where’s the Knowledge

Is there a knowledge element elsewhere in the DMCA or in the US Copyright Act that applies to this section?  What am I missing?  Do any of our readers have an idea why the judge would require the prosecution to prove that the defendant knew he was breaking the law?

"Give it back!". "Shan't!". Court of Appeal rules ...

Back in July, when this blog was but a young pup, we posted an item ("When lawfully seized goods can't be retained") on Scopelight Ltd and others v Chief Constable of Northumbria and the Federation Against Copyright Theft [2009] EWHC 958 (QB) in which Mrs Justice Sharp (Queen's Bench Division, England and Wales) ruled that the police had no power to retain property under the Police and Criminal Evidence Act 1984 s.22 against the wishes of the person otherwise entitled to possession of it, once a decision not to prosecute has been taken, in order that a private body could consider whether to bring a prosecution, or indeed while that private prosecution was being brought.

Right: the picture looks grim -- unless it's an infringing teddy

The facts were simple: Mr & Mrs Vickerman, who ran a video search engine website, provided thousands of links to third party websites which hosted videos. Following a complaint by FACT, a private commercial organisation representing the interests of the audio-visual industry, that this website was hosting two third party file sharing websites, the police obtained a warrant to enter the Vickermans' premises on the basis that there were reasonable grounds for believing that offences of conspiracy to defraud and money laundering had been committed. The police lawfully seized internet server equipment and associated documents, which was later released by the police into the possession of FACT for the purposes of the police investigation.

After the Crown Prosecution Service (CPS) decided not to prosecute, the Vickermans asked for the return of the seized property. The police said they couldn't, since FACT was considering whether to bring a private prosecution. The Vickermans then sued for delivery up of the seized property and damages for conversion, while FACT began a private prosecution (which at the time of the trial was still proceeding) in respect of various copyright offences.

The police and FACT both argued that retention was permitted because it was for use as evidence at a trial and forensic investigation for an offence which was the subject of an ongoing prosecution. Sharp J disagreed. In her view, (i) the power of the police to seize, use and retain property was conferred on them for the better performance of their public functions and for law enforcement purposes: those purposes did not include the seizure, use or retention by the police of private property to assist private interests; (ii) Parliament never considered whether private property, once seized by the police, could be used by a private body for its own purposes (including considering whether it should bring a private prosecution or bringing a private prosecution); (iii) while the right of private bodies or individuals to bring a private prosecution was well established, it did not carry with it the automatic right to override private property rights in the absence of an order of the court, nor did it carry with it the powers conferred by Parliament by the police.

Today the Court of Appeal (Lords Justices Ward, Wilson and Leveson) in [2009] EWCA Civ 1156 allowed the appeal and remitted the case for further submissions as to the continuation of the interim order. Giving judgment for the Court, Leveson LJ said, at paras 50 to 54:

"The position can be tested by reference to FACT. It is not suggested that there is not a public interest in the prevention of copyright infringement. The real concern is that commercial organisations have formed FACT to protect their own commercial interests and can use criminal prosecution as a club with which to protect those interests. That is clear from the way in which the matter was put in Scopelight's skeleton argument, which criticises FACT's failure to commence civil proceedings, having observed (at paragraph 20):

"It is difficult to see where the public interest lies in prosecuting such a difficult case in the criminal courts, clogging up a great deal of court time, simply to satisfy the commercial ends of various multinational companies."

Quite apart from the fact that the Copyright, Designs and Patents Act 1988 provides for criminal sanctions (meaning that Parliament has determined that criminal proceedings are appropriate in these cases), the premise reveals precisely the difficulty which holders of copyright are likely to face in pursuing cases through the police and the CPS. These cases are complex, specialist knowledge will inevitably be required to pursue them, and each case is likely to be difficult, time consuming and expensive ... In a time when allegations of terrorism and other extremely serious crime take up more and more time and involve ever increasing resources, it is inevitable (and appropriate) that the CPS will have to be selective. For my part, I see no reason why the CPS should not be entitled to conclude that it is unnecessary for them to embark on another prosecution while issues of law are being resolved ... If there is no merit in the prosecution, that will no doubt be revealed. A preparatory hearing under Part III of the Criminal Procedure and Investigations Act 1996 can, if it is thought appropriate, generate an early resolution of legal issues (particularly if determinative). If the power to prosecute is being used in bad faith, or inappropriately with the true aim of preventing Scopelight or the Vickermans from pursuing a legitimate commercial venture, as I have indicated, there are various mechanisms available to the court to prevent an abuse of its process.

...

What then should be the approach? ... , in my judgment, the phrase "anything which has been seized by a constable ... may be retained so long as is necessary in all the circumstances" requires the police to consider each case on its own individual facts, at each stage in the process of investigation and prosecution. If the CPS is prosecuting the case, whatever is required for forensic investigation or the prosecution will obviously be retained but, even then, consideration will have to be given to ensuring that no more than is necessary for the case (either to pursue it or to rebut a potential defence) is kept. If a prosecution is not to be pursued by the CPS but some other public or private body wishes to pursue a private prosecution, the relevant circumstances include (but are not limited to): the identity and motive of the potential prosecutor; the gravity of the allegation along with the reasoning behind the negative decision of the CPS and thus the extent to which, in this case, the public have a legitimate interest in the criminal prosecution of this conduct; the police view of the significance of what has been retained; and any material fact concerning the proposed defendant. All this falls to be considered so that a balanced decision can be reached upon whether retention is necessary "in all the circumstances". Such a decision would be capable of challenge on traditional public law grounds.

I add only this. Mr Purvis [for Scopelight] raised the spectre of the police having to search for anyone interested in pursuing a private prosecution before reaching a decision on retention. I reject that suggestion. In the normal course, it will be perfectly obvious whether anyone is interested in mounting a private prosecution in the event of an adverse CPS decision but there is no obligation on the part of the police to look for a candidate. A request to return property will obviously have to be dealt with timeously and I echo the suggestion of Carnwath LJ in Gough v Chief Constable of West Midlands Police [2004] EWCA Civ 206 at para 44-5 (with which Potter LJ, as he then was, agreed) that if civil proceedings are commenced for return of the property, the police will have to give careful thought as to whether they are in practice able to defend the proceedings and whether section 22(1) enables them to retain the property "for a short period while they consider the position". He later suggested that, in normal circumstances, that should be "at or about the time for serving their defence"".

For good measure, the Court rejected the argument that the failure to return the Vickermans' property infringed their human rights under the European Convention on Human Rights.

This decision will be welcomed by all those who are involved in the grubby, mundane day-to-day side of enforcement, who sometimes feel that, whatever the law on infringement may and however powerfully it protects copyright owners' interests, it's what happens at this level which determines whether high-flown principles of protection have any real guts to them.

When lawfully seized items can't be retained

The 1709 Blog could easily have missed the ruling of Mr Justice Sharp in Scopelight Ltd and others v Chief Constable of Northumbria and the Federation Against Copyright Theft [2009] EWHC 958 (QB) in the Queen's Bench Division (High Court, England and Wales) a couple of months ago, were it not for the fact that I spotted it in the newly-published issue 4/2009 of the European Copyright and Design Reports (Sweet & Maxwell, 6 times a year). In short, this was a ruling that the police had no power to retain property under the Police and Criminal Evidence Act 1984 s.22 against the wishes of the person otherwise entitled to possession of it, once a decision not to prosecute has been taken, in order that a private body (in this case FACT) could consider whether to bring a prosecution, or indeed while that private prosecution was being brought.

This action was brought by the Vickermans, a husband and wife team who ran a video search engine website. This was not a file-sharing website, but it did provide thousands of links to third party websites which hosted videos. Following a complaint by FACT, a private commercial organisation representing the interests of the audio-visual industry, that this website was hosting two third party file sharing websites, the police obtained a warrant to enter the Vickermans' premises on the basis that there were reasonable grounds for believing that offences of conspiracy to defraud and money laundering had been committed. On this basis the police lawfully seized internet server equipment and associated documents. That property was later released by the police into the possession of FACT for the purposes of the police investigation.

When eventually the Crown Prosecution Service decided not to prosecute, the Vickermans asked for the return of the seized property. The police said they couldn't, since FACT was considering whether to bring a private prosecution. At this point the Vickermans sued for delivery up of the seized property as well as damages for conversion, while FACT began a private prosecution (still proceeding) in respect of various copyright offences.

So could the police retain the seized property under the Police and Criminal Evidence Act 1984 s.22 even after the CPS had decided not to prosecute, if the retention was for the purpose of assisting a private prosecution? The Vickermans argued that the police power to retain property ended once the CPS decided not to prosecute. The police and FACT both contended that retention was permitted because it was for use as evidence at a trial and forensic investigation for an offence which was the subject of an ongoing prosecution.

Sharp J ruled in favour of the Vickermans. He held as follows:

* The power of the police under the Act to seize, use and retain property was conferred on them for the better performance of their public functions and for law enforcement purposes: those purposes did not include the seizure, use or retention by the police of private property to assist private interests. Parliament never considered whether private property, once seized by the police, could be used by a private body for its own purposes (including considering whether it should bring a private prosecution or bringing a private prosecution).

* While the right of private bodies or individuals to bring a private prosecution was well established, it did not carry with it the automatic right to override private property rights in the absence of an order of the court, nor did it carry with it the powers conferred by Parliament by the police. Accordingly, the police had no power to retain property lawfully seized under the Act against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute had been taken.

Affordable Legal Route for Victims of Infringement?

This is more of a question than a statement: but, in advising predominantly creators, many at the early stages of their career, I often find that, on occasions where creators' rights as owners have been infringed, legal redress is out of their reach financially. The question equally applies where an SME has acquired rights by contract. It occurs that there may be an opportunity for such victims to seek justice or recompense in the UK via the provisions of the Copyright, Designs and Patents Act (CDPA) regarding secondary infringement (CDPA ss 107-110) and the criminal liability that attaches to the making of or dealing in infringing articles. Being a matter of criminal law, with the standard of proof being beyond all reasonable doubt, this option would, of course, only be open where ownership was not at issue and there is clear evidence of infringement. Yes, one has the option of making a complaint to the Crown Prosecution Service or Trading Standards, but there is no guarantee that these bodies will instigate proceedings.

However, the Prosecution of Offences Act 1985 enables anyone to stand in the name of the Queen - so in theory surely the victim of infringement can take the faster (and cheaper) route of instituting a private prosecution of the infringing culprit? The CDPA penalties of imprisonment and a fine (with the potential, also, for an award of compensation) imposed by a Magistrates or Crown Court would , I imagine, act as a powerful wake up call. Limited companies could be challenged using this route as well as the individuals who control them. Section 110 CDPA states that, where an offence is committed, with the "consent or connivance of a director, manager, secretary or other similar officer of the body ... he as well as the body corporate is guilty of the offence". So the way is open (in the words of the most erotically charged principle in company law) to "pierce the veil of incorporation". And, any conviction would follow such an individual around! To paraphrase Dr Johnson (above, right), "[d]epend upon it, Sir, when a man knows he [is facing a summons for copyright infringement], it concentrates his mind wonderfully" (Life, Vol 3 19 September 1777).

What would be interesting to know is whether readers have tried this -- has it been successful?