Private justice: How Hollywood money put a Brit behind bars
arstechnica.com
arstechnica.com
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.
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?
It is news to me --- and, wow --- that private entities can prosecute crimes in the UK. Am I reading that right?
For example:
http://www.firmmagazine.com/features/155/When_worlds_collide...
http://en.wikipedia.org/wiki/Murder_of_Stephen_Lawrence
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.
This is mostly a good thing. If anything, we need more discretion over charging cases.
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 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.
> 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.
(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.
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.
Except when Mickey Mouse comes up for expiration.
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.
You can't recreate a movie from a plot summary, same way you can't recreate a movie from a torrent file.
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.
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.
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.
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]".
"What Colour are your bits?" http://ansuz.sooke.bc.ca/entry/23
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.
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!"?
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'.
.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.
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.
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.
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.