The UK has a spectacularly weak judicial system for an industrialized country.
From the lack of judicial review of primary legislation ([1]) through a huge abundance of archaic haphazard laws, to lack of representative judges, to the ease with each political, police, partisan and private organisations can influence the judiciary, the UK system is ripe for abuse and disruption by any industry. It is also fertile ground at this time due to the dual US/UK government focus around issues of "Intellectual Property".
From a general perspective, the only saving grace, which is a relatively minor one in practice (by volume not significance), is that EU laws normally have precedence and judges are therefore unable to act completely unilaterally without risking being overturned.
Just think: what other industrial country permits unilateral criminal prosecution from private entities with explicit support from one of its judges?
[1] Yes, I am aware that without an arms-length written constitution, this would potentially make things even worse.
I'm not sure what perspective you're writing from, but I think many people in the legal profession would disagree with you.
Firstly, the UK has several distint judicial systems. I suspect in this case you're referring to the English legal system (Scotland having its own, entirely separate, process). There's then the civil and criminal courts. The former are held in high regard around the world - the English courts are often the venue of choice for impartially resolving international disputes and litigation.
You can argue it is a discrepancy that private prosecutions are still allowed - at some point in the past they did actually serve a purpose - however, under the English system it is up to the government, rather than the judiciary, to correct that.
I am not pretending it is a perfect system: far from it. I think in this case the judge behaved inappropriately, and the logic being used to force a copyright claim (which is a tort, i.e, purely a civil matter) into a criminal one (conspiracy to defraud) is potentially very spurious. However, this is also why an appeals system exists.
What I'm basically trying to say in a round-about way is that I don't think the English courts are 'spectacularly weak' - they have their problems, but what judicial system doesn't?
Well, only England & Wales (not Scotland), but yeah. Private prosecution used to be the norm, and was never abolished, just supplemented by Crown prosecution. The Crown can take over any private prosecution, either to prosecute it themselves, or to drop the charges, and now handles most cases. But sometimes the Crown doesn't care to intervene either way, and the case can go forward on the private party's dime. I can't seem to find any statistics on how common convictions are in those cases, e.g. if it's mostly private parties wasting their time on no-hope prosecutions, or if there are actually a substantial number of people convicted in cases that the Crown doesn't consider worth prosecuting.
Yes, that's right. For example the RSPCA, a private charity, brings its own prosecutions against alleged animal abusers, something that the CPS (government prosecutors) might not want to spend time and money on.
It seems odd to me that in other countries individuals can't bring criminal cases - leaving everything to the "official" prosecutor (e.g the Procurator Fiscal here in Scotland).
How, exactly, do pleas and charge reductions work when the person conducting the prosecution has none of the incentives for leniency that the state does?
Good question - it is perhaps worth noticing that private prosecutions are rather rare and typically only happen when the "official" prosecutor appears to have made an error of judgement and appear to be taken by victims (or their families) as an act of desperation.
What happens in other countries if the "official" prosecutor chooses not to prosecute a crime?
NB I'm not intending to imply that I think the various approaches to private prosecutions that we have in the UK are a good thing - this case brought by FACT does look a bit worrying.
In the US, if the prosecutor with authority over the offense chooses not to prosecute, and no other venue exists to prosecute the offense (for instance, there's no federal angle to the offense that would get the FBI involved), that's where the matter ends. And that's exactly how things do end, all the time.
This is mostly a good thing. If anything, we need more discretion over charging cases.
It seems like you either think we should eliminate the ability for defendants to negotiate lesser sentences, or you want to make an entirely orthogonal point about the US criminal justice system. Which is it?
Prosecutors routinely have to decide between pressing an ambitious charge with a higher risk of acquittal, or settling for a lesser charge. This happens all the way up and down the spectrum of offenses; for instance, there's something like 4 different things a mugger in Chicago can get charged with. How exactly do this balance get handled when the prosecutor is by charter acting in their own interests and not the interests of the community?
para 2: I don't understand the issue. Surely the prosecutor should throw everything s/he's got and the judge and jury, who are charged with protecting the interests of the community, decide what sticks? For the prosecutor to be involved in that decision seems a conflict of interest/incentive to corruption (this is the point you are making about private prosecutions, but I would argue that even a public prosecutor is rewarded for convictions).
para 1: yes, I want to eliminate the ability for defendants to negotiate lesser sentences. Like many practices we like to despise governments for tolerating (bribery, corruption, torture), it's convenient, practical and even successful in many cases, but it's totally unjust.
It's totally unjust if the world is a computer simulation in which arbiters have perfect information and there's a binary right/wrong answer to every problem. Since that's not the world we live in, I am very glad prosecutors are allowed the discretion to follow human intuition about the grade of offense to charge. Like most other government interventions, there are checks and balances regulation that discretion.
I don't think we "officially" have plea bargains in the UK but something similar does happen. I was on the jury for a case involving someone being assaulted with a knife, before the case could actually really get started it we were told the chap being prosecuted had pleaded guilty to another lesser offence and we were all sent home.
There are similar incentives - a 'not guilty' plea lengthens the case, which increases the cost to the prosecutor. I also understand that the if the prosecution loses, they pay the defendant's court costs, and a guilty plea means they win with no risk of that payout.
That is bizarre. The government is, in theory at least, non biased towards any particular private interests. The fact that a private entity can launch its own investigation using its own methodology and then use said evidence to take away someones freedom is downright terrifying.
It's increasingly becoming clear that the practice is very different. There's several cases, most notably Assange and the current Megaupload trial that indicate that private entities are putting pressure on governments, who in turn put pressure on their peers in other countries. And it can't all be written off as conspiracy theories anymore.
I think SAP is referring to an external entity having an influence on a government's judicial process, not necessarily strictly private. Whether it's the US Government or a special interest group. Assange's case included.
I don't think that is the intended statement at all. Please reread this sentence:
> There's several cases, most notably Assange and [...] that indicate that private entities are putting pressure on governments, who in turn put pressure on their peers in other countries.
I can't believe what I've just read. A civil case yeah why not but criminal charges and imprisonment from a private entity after the CPS have basically said its not worth it? Scary.
English law has only partly transitioned to public prosecutions. Private prosecutions are still legally the norm, but CPS prosecuting a case is de-facto the norm, as they have the right to take over a private prosecution. In most cases, CPS either takes over a case and prosecutes it, or takes over a case and drops the charges (if evidence is wholly insufficient, or continuing prosecution is against public policy). But this leaves the awkward vestigial category: cases that CPS chooses neither to intervene to prosecute nor to intervene to drop, which can go forward at a private party's own expense.
(Note: Only true of English/Welsh law; Scots law makes it much harder to bring a private prosecution.)
At the site's peak in mid-2009, STC attracted hundreds of
thousands of users per day, earning Vickerman up to
£50,000 ($78,500) per month in advertising revenue.
Let's say he did 999,000 users/day (to stay in the hundreds of thousands). That's still only $30K per month, if we assume a CPM of $1.00, which seems reasonable for a site like this.
Somebody once pointed out that such link aggregation sites that operate outside the US seem to be getting in more legal trouble than similiar sites operating under a US domain and possibly on US soil. Is this true and if so, why?
The UK 'Government' is just a lapdog for US interests and they are scared of pissing them off. So they can get away with it. The English courts in particular are weak compared to others in the UK as well. I think they need a change of Government.
U.S. copyright laws and enforcement are not as bad as nerdom make it out to be. Indeed, the U.S. is frequently the opposition to extending copyright durations and other copyright regimes (ACTA, etc., notwithstanding).
In the U.S., copyright infringement is only a crime if done for money (because there is an element of fraud, i.e., selling goods that you do not own). Outside of the U.S., copyright infringement can be a crime even if no money is involved. Furthermore, a lot of the "rights" in the criminal justice system are actually features of only the U.S. system (i.e,. right to a lawyer, right to a fair trial, right to a jury) and are not actually shared by most other legal systems.
Especially ridiculous is that the judge complains that he has no remorse for "making available" content that "infringes copyright". But of course, he didn't make any such content available. (Do .torrent files "infringe copyright"?)
.torrent files make that content available. The simplest counterargument is that if his actions didn't make that content available, what were all the visitors to his site doing?
Should a person be able to successfully defend with "What's the problem, I was only giving copies of the vault key to the people who I knew would burgle it. I never handled any of the vault contents myself!"?
Herein lies the problem. While your vault example makes sense, you can also say that someone selling knives or guns can't be responsible for people using them to murder someone else. Where do you draw the line? If you are merely providing something, where is the line where suddenly it's my fault instead of the fault of the user?
I think the difference here is that information and objects have an intended purpose - a knife is usually for chopping food, a gun is usually for... erm - however a vault key clearly can't have a use outside of using it to get into the valut. Where to .torrents fall in this? It's not the vault key situation, because there are definite good uses for them (linux distros, I believe Blizzard uses bittorrent to distribute updates?). However, the majority of torrent usage is for piracy [citation needed].
So I guess what I'm saying is that all objects have a potential for negative usage and a potential for positive usage, and we're trying to draw the line somewhere in a rather undefined way.
To me, it seems unfair and harsh to be imprisoned for something that by another interpretation seems okay. I have a reasonable expectation not to be imprisoned for creating a site where people can post content. If it's coopted by the community into a place where people post torrents, it seems that right now I could be sent to jail for that.
The problem here isn't the intention of the owner of the site, just like it isn't about Kim Dotcom's intention. I don't disagree that they were completely aware that they were profiting from other people's desire to pirate. My problem is that all of these legal cases against these people seem to be brought in a way that doesn't feel 'just'.
The key part of my analogy is "that I knew would burgle it". It's exactly like being an accessory to a crime. Drive a getaway car and you're not going to be able to use "hey, driving is completely legal, you can't charge me!"
.torrents themselves are perfectly fine, just like knives. I'm not making the argument that the object should be banned. But if a frothing hooligan runs up and asks for your knife because he's going to stab that guy over there, it's pretty clear that if you hand it over you've facilitated a crime.
So it's not the innate nature of the .torrents themselves, but the use of them as a nexus to set people up with illegal content. Like being a middleman selling stolen property, perhaps. You didn't steal it, but you did make it available.
What is your ISP doing, if not "making things available".
Let's stop arguing about whether or not torrents are copyright infringement, and move on to the second point: can one be expected to show remorse for what amounts to computing a mathematical function over an encoded movie file? Even if it's wrong, my human emotions aren't programmed to respond to that.
Do you support the eradication of 'accessory to' crimes, like my getaway driver example below? Intent is an important part of the law. Drive into a pedestrian, killing them - if you didn't intend to, it was an accident, a sad event. If you did intend to, it was murder.
The ISP is providing me with access to the internet, and is not providing me with a list of links to copyright-infringing material, constantly updated for my convenience.
If instead of the .torrent file, it was a list of stolen credit card numbers, the situation would be much clearer. It would be stupid to hold the ISP as equally accountable as the website owner. To hold ISPs as having the same intent as every website owner in the world would make them legally liable for all online fraud. Clearly there's a difference.
For something like a movie they mostly consist of a hash list which is clearly a derivative work based on the original so probably. http://en.wikipedia.org/wiki/Torrent_file
EX: A 4GB file using 4MB pieces would have 1000pieces x 20 byte hashes or 20k of 100% derivative work. And ~2k for all other meta data.
A summary is not created though a purely mechanical process, but a torrent is.
PS: If you created a random file that happened to contain a movie's hash your free and clear. If you keep generating random files and comparing them to a movie until you get the one you want your not free and clear. Same bit's, different process different result.
A Torrent file's hash is representative of the movie or music's binary data, much like a synopsis or summary is representative of the plot line. You can't recreate a movie 100% from a summary, and it's even more difficult to recreate a movie from a hash.
The only infringement would come from downloading the movie itself (as a separate action) and comparing it to the hash or summary to ensure you have the correct movie.
That's not how copy write works. A summery involves creativity and factual information, and hash is a purely mechanical transformation without creative input. For much the same reason if you ran someone else book though a language translation software you could not prevent them from selling copy's of their work after being run through that same software translation. However, if you paid someone else to translate a book you could not sell it, but you could prevent the original author from selling that translation.
PS: There is a great post on copywrite that basically talks about bit's having color. It's not a physical process but legally the way there created creates a 'fingerprint' that matters.
Do you have a link to the article about color? Google isn't turning up anything in regards to "copyrighting color" that seems remotely relevant.
And me being pedantic: It's copyright, not copy write, because this is a form of law, like "the right to bear arms", or "the right to an attorney". Conversely, a work cannot be "copywritten", it is "copyrighted", or more appropriately "to secure copyright for [a work]".
I've heard the phrase "color of bits" before in reference to
matters involving copy laws, and I vaguely remember reading
something about it. I think the following link/post from 2004
is what you're after, but it might be the wrong reference. I'm
not entirely certain, but ya, finding something like this with
a search engine can be painful if you don't know exactly what
you're looking for.
Retric's other comments explain why this is legally and factually accurate based on the current state of US and UK copyright law.
Basically, a "derivative" work product that is mechanically (i.e., algorithmically) created from another copyrighted work is infringing because there is no creativity in the second work and the torrent hash's sole use is distributive. The selection of algorithms or parameters generally is not sufficient "creativity" (but can be, in very limited circumstances).
Ergo, a torrent is an infringing derivative work.
A summary requires some creative thought, specifically, what plot elements to discuss and which to leave out, how to state the plot, etc. The summary generally also has a non-distributive use in its own right. Consequently, a summary is also a derivative work but is not infringing.
A thought experiment: What if he was facilitating access to child pornography rather than Hollywood films would people be as outraged? More so? Less so?
If the suggestion of an income of up to £50,000 per month is even in the correct ballpark then this character was in the business of profiting hugely from copyright infringment and the jail time is appropriate.
The outrage about this is just windbaggery from thieves bemoaning the fact that they can't steal with impunity. And yes, depriving people of income is theft. Don't want to pay for a movie? Then watch something else.
"depriving people of income is theft"
So if someone comes out with a competing product to mine, and splits the market in half, I lose (was deprived of) half my income. Was that theft?
I think a more appropriate phrasing is "a government granted exclusive monopoly is a property right -- anyone violating that exclusivity is devaluing that property" which itself may be just as bad as theft (or more likely vandalism -- if someone takes my car, or destroys it on site, the damage is the same).
Too much of this debate is around how to define 'theft'. Really the issue is that folks are accessing a service providing entertainment (movie, tv show, game, music) without paying the requested fee by those who provided it. Whether or not it fits into the various definitions of theft people throw around is largely immaterial.
I'm glad there is private-sector criminal prosecution in UK, wish it was here in the US as well. Then maybe cops would think twice before murdering citizens; they currently get off free every time because the DAs never prosecute one of their own.
From the lack of judicial review of primary legislation ([1]) through a huge abundance of archaic haphazard laws, to lack of representative judges, to the ease with each political, police, partisan and private organisations can influence the judiciary, the UK system is ripe for abuse and disruption by any industry. It is also fertile ground at this time due to the dual US/UK government focus around issues of "Intellectual Property".
From a general perspective, the only saving grace, which is a relatively minor one in practice (by volume not significance), is that EU laws normally have precedence and judges are therefore unable to act completely unilaterally without risking being overturned.
Just think: what other industrial country permits unilateral criminal prosecution from private entities with explicit support from one of its judges?
[1] Yes, I am aware that without an arms-length written constitution, this would potentially make things even worse.