Friday 9 September 2011

Sitek and the crime possessional

Here, proving that blogs do not always have to race to bring their audiences up to date, is news – cold off the press – of a judgment delivered in May, Sitek v Circuit Court of Swidnica, Poland, [2011] EWHC 1378 (Admin), an extradition case.

It was held that a defendant acquiring audio files ‘with the traits of illegal copying, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of a licence’ would constitute an offence under s. 329 of the Proceeds of Crime Act 2002. That provision states that a person commits an offence if he acquires, uses or has possession of criminal property. Lloyd Jones J inferred that the files were ‘criminal property’ as the fruits of criminal conduct under s. 107 CDPA.

Is this a first? The copyright-specific criminal offences under the Copyright Designs and Patents Act are active (selling or distributing), but this is about being on the receiving end.


Crosbie Fitch said...

I have long foreseen unlicensed copies becoming contraband, and the offence of "possession of illicit copies with intent to distribute", which will subsequently lose the 'intent to distribute' qualifier.

I have also foreseen the amusing*, unintended consequences.

The ©artel may have the power and ferocity of dinosaurs, but they also have their intelligence - and the conceit that goes with all three, that they will dominate the planet for aeons to come.

* to abolitionists.

Francis Davey said...

I'm not sure the question of whether the "files" were "property" within the meaning of section 340 was properly addressed.

A "file" isn't a kind of property known to English law. Its not a chose in possession - you can own the device it lives on, but not the file itself - nor a chose in action. I suspect the judge was mislead by using terminology we have come to use in the world of computing which treats files as things, without considering whether they were in fact things.

If computer files were property, then of course the sale of goods legislation would apply to software sales on the internet as would all kinds of regulatory provisions which are not thought to apply.

The key thing is that the POCA offences are aimed at property that actually belongs to the criminal, rather than property that has been stolen (for which there are of course other penalties). If I unlawfully copy a computer game, I do not own any property in the game, so it can't be subject to POCA.