Posted by anthonyberet on 11/13/05 13:29

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.

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