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Posted by HibiscuzBeaver on 11/14/05 00:49
"anthonyberet" <nospam@me.invalid> wrote in message
news:3totfgFtj5d5U1@individual.net...
> Link:
> http://www.slyck.com/news.php?story=972
>
> I wonder if anyone from uk.legal would care to comment, for the benefit of
> the p2p groups in the x-post? (by this I mean, please leave the x-post
> intact when replying).
> The full text appears below:
>
> The BPI, the British Phonographic Institute, have been busying themselves
> emulating their American counterparts, the RIAA, rattling their sabers and
> threatening legal action against petty file-sharers. But how much of this
> is an empty threat, and how much ammunition do they really have in their
> arsenal against file-sharers?
>
> The BPI claim to be reluctant litigants, saying that they don?t want to
> make a business out of suing people, and the statistics certainly do tend
> to support their claims. They are misleading nobody, for if they were
> planning to make a business out of it, they have been spectacularly
> unsuccessful. To date they have actually succeeded in taking nobody to
> court. Yes, that?s right, nobody. All they have succeeded in doing is
> frightening a small number of vulnerable people into paying up rather than
> risk a legal battle, whilst at the same time lending phenomenal publicity
> to the fact that people can get something for nothing virtually risk free.
>
> Matt Phillips, spokesperson for the BPI, is on record for having said that
> the BPI are only targeting those who upload - which includes of course,
> those who share or seed copyrighted files. Whether the BPI would stand a
> snowball?s chance in hell of succeeding in any action against anyone
> accused of downloading even if they wanted to is a moot point. As matters
> stand, neither uploading nor downloading copyrighted files for personal
> use in the UK is actually against any specific law.
>
> Acts of Parliament generally make exceedingly dull bedtime reading, and
> the Copyright, Design and Patents Act, of 1988 is certainly no exception.
>
> http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm
>
> Well over 250 full pages and 300 sections of it. Quite enough to make the
> most hardened lawyer?s eyes glaze over in boredom. So this short article
> couldn?t possibly do justice to a subject whole armies of lawyers have
> spent years struggling to come to terms with, and has spawned complete
> industries. Instead we set out to offer a simplified commentary on those
> specific areas that are currently attracting the most attention. Neither
> is this debate necessarily limited to UK legislation, as many governments
> have implemented similar laws based on the same WIPO terms which are
> couched in almost identical language.
>
> Whilst it deals with the rights of copyright holders against commercial
> pirates and counterfeiters, thus dealing with criminal offences, the
> principles detailed within the CDPA (as it is generally referred to)
> defines the general tort (or ?civil wrong?) associated with file-shareing.
> In the UK it is regarded as the defining document regarding copyright, a
> reference point distinguishing between what amounts to criminal activity
> and what doesn?t.
>
> And make no mistake about it, unless the file transfer has been made for
> commercial reasons (i.e. "not personal and domestic reasons?) the only
> remedy open to the BPI is to take civil action based on a breach of the
> license terms. Not having grossly exaggerated ?statutory damages? to fall
> back on, as in the USA, they have to quantify their actual losses ? in
> other words, they have to prove what they have actually lost as a
> consequence of any alleged infringement. Does this make a real difference?
> Too darn right it does. In the USA the author of a copyrighted item can
> claim between $750 - $30,000 for accidental infringement without even
> having to prove that he has lost a single cent (17 USC ?411a) going up to
> a staggering $150,000 per item for willful infringement (17 USC ??412,
> 504c) ? not too mention having to foot the legal bill.
>
> The license for any work amounts to much the same as a EULA (End User
> License Agreement), a contract between the authorized seller of copyright
> material and the buyer of such material, which in turn transfers or passes
> on to any subsequent purchasers. But how can any person who subsequently
> came into possession of such material (e.g. an electronic version) be
> bound to the terms of any license agreement that were not brought to his
> initial attention or weren?t otherwise immediately obvious?
>
> The CDPA appears to be totally inconsistent with the BPIs stated position.
> For example, section 5 (2) stipulates that "Copyright does not subsist in
> a sound recording which is, or to the extent that it is, a copy taken from
> a previous sound recording." Hang on, the term subsist means to continue
> in existence according to the legal dictionary. If copyright doesn?t
> continue in existence, then it doesn?t take a genius to work out that
> copyright actually ceases at the very point a copy of the original ? or
> ?previous sound recording? - is first taken. Surely then it is the person
> who first breached copyright who is actually responsible for all
> subsequent copies, and not those who simply follow on down the chain?
>
> Translated into P2P terms, this appears to mean that the person who
> initially seeded copyrighted material almost certainly breached the terms
> of his license with the seller, and could be liable for losses and
> damages, but this doesn?t appear to apply to reseeded copies. Even if the
> court begs to disagree, this still amounts to the absolute defense of
> innocent infringement (S97):
>
> ?Where in an action for infringement of copyright it is shown that at the
> time of the infringement the defendant did not know, and had no reason to
> believe, that copyright subsisted in the work to which the action relates,
> the plaintiff is not entitled to damages against him??
>
> According to the BPI, this isn?t exactly what the British government meant
> to say. When confronted with this seemingly obvious inconsistency, their
> legal department rather confusedly said ?Section 5 A (2) simply makes it
> clear that a straight copy of a pre-existing recording doesn't give rise
> to a separate copyright. Instead, each copy of a sound recording (whether
> first, second, third etc generation) that is a copy of an original
> recording involves a reproduction of the original copyright. If done with
> consent then there is no infringement. If the copy is undertaken without
> consent ?then there is infringement?.. Lawyers are used to all sorts of
> nonsense being spouted by others, but this has to win several major
> prizes.
>
> One could be forgiven for thinking that it is presumptuous for the BPI to
> tell us what the British government actually meant as opposed to what is
> set down in law. Especially given that their own Matt Phillips freely
> admitted that he didn?t understand the specific legal points put to him,
> and their own legal department doesn?t appear to have sufficient in-house
> expertise to understand what is written in black and white. Indeed, the
> normally imperturbable Matt became quite distraught when pursued for an
> answer, resulting in the intervention of their Chairman, Peter Jamieson,
> and eliciting their apology. ?We ourselves are advised by specialist law
> firms on all legal aspects of copyright law? stated the 35 year old
> replacing Geoff Taylor in a shake up as their General Counsel, Oxford and
> Cambridge graduate Roz Groome, who was almost visibly clutching at straws
> when her curious interpretation of law was challenged.
>
> Not that this is the only glaring contradiction. Section 22 of the CDPA
> states "The copyright in a work is infringed by a person who, without the
> license of the copyright owner, imports into the United Kingdom, otherwise
> than for his private and domestic use, an article which is, and which he
> knows or has reason to believe is, an infringing copy of the work." Yes,
> that?s right. If it is done solely for private and domestic use, then it
> doesn?t amount to an infringement. Couldn?t be clearer. And given that P2P
> spans the globe, with international transfers being the norm rather than
> the exception, who is to know the origin of material ?imported? into your
> private and domestic household? Or innocently redistributed to others
> through P2P for that matter.
>
> The BPI could offer nothing comprehensible in their reply when this was
> pointed out to them, saying only ?If the imported copy is an infringing
> copy then any subsequent sale is infringing.? But we?re talking about
> giving it away, nobody mentioned anyone selling copyright material.
>
> It seems that, despite their position as the definitive authority dealing
> with copyright issues on behalf of the UK recording industry, the BPI
> appear to be at least as confused as anyone else. Little wonder they are
> so reticent to voice their position in a court of law. It?s probably more
> a fear of humiliation in the courts than some quirk of humanity that makes
> them reluctant to go to court. And humiliation will not go down at all
> well with their ?members? who are actually paying them. The prospect of
> their standing up and telling a judge what the law meant to say as opposed
> to what it actually says sounds a great script for a Monty Python comedy
> sketch, and should elicit a most entertaining response. Entertaining to
> onlookers, that is.
>
> So far they have relied on the threat of litigation, rather than the hard
> reality of the courtroom. This policy appears to have paid dividends in
> the USA, where litigation is as much a way of life as drivers being shot
> in freeway incidents. However, this is all starting to change now trial
> lawyers actually risk losing their license to practice if they repeatedly
> file lawsuits found to be frivolous by the courts.
>
> This same threat has long moderated the UK legal scene, combined with the
> fact that there are no wildly exaggerated ?statutory damages? for
> file-sharers and therefore copyright owners have to prove actual loss as
> part of any claim. This has undoubtedly kept the floodgates closed
> relative to the USA, and should keep the UK free from the kind of outrages
> we have witnessed with their American counterpart over the past year.
Kind of makes you wonder what is the point to using WinMX if this
happens....
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