As revealed earlier this month, UK police have begun working with rightsholders on a campaign to shut down file-sharing sites. Many site operators have received warnings that their activities are not only breaching copyright law, but also the UK’s Serious Crime Act. With some sites considering closing but most remaining defiant, what do the police threats mean from a legal perspective? To find out, TorrentFreak spoke with intellectual property lawyer Darren Meale.
For the operators of torrent and other file-sharing sites, receiving emails from sometimes angry rightsholders is a regular event.
Most will simply want torrents or links to torrents removed from an index but some will flex their muscles and demand a full shutdown. With the first option much more likely to achieve its aims than the second, rightsholders are now developing their ties with law enforcement in the hope that a word from the police will achieve more sustainable results.
Police, FACT and the BPI team up
Earlier this month TorrentFreak revealed that one such partnership between FACT (Federation Against Copyright Theft), BPI (British Recorded Music Industry), The PA (The Publishers Association) and the police had just been launched.
The National Fraud Intelligence Bureau (NFIB) confirmed it had begun sending out letters to file-sharing site operators warning them that their activities are now being treated as criminal acts.
To find out what this means on the ground, TorrentFreak spoke with Darren Meale, an intellectual property expert at the international law firm Dentons.
Civil vs Criminal infringement
“What the police are doing here is accusing the operators of these websites of committing criminal copyright infringement. We tend to think of copyright infringement as a civil wrong, meaning an unlawful activity which it is up to the person who has been wronged – the copyright owner – to take his or her own action against in the English civil courts,” Meale begins.
“As we’ve seen from the more recent, and successful, attempts by the music industry to force UK ISPs to block the likes of The Pirate Bay, Fenopy, H33T and KAT, the English civil courts are now fairly easily persuaded that BitTorrent trackers – and their users – are indeed committing civil infringements of copyright in a number of ways, including by the unauthorized ‘communicating to the public’ of the material in question.”
So with the ‘civil’ element defined, how do the police then make the leap to a full-scale crime punishable not only by fines, but imprisonment?
“In these cases, the police are accusing the websites of criminal unauthorized communication to the public. This is identical to the equivalent civil wrong, but the infringer has to be doing it ‘in the course of business’ and he has to know or have reason to believe that he is infringing copyright,” Meale explains.
Therefore, it could be argued that if a site displays advertising, solicits donations, or generates revenue by other means, its owner could be seen by the police as operating a business. Couple that with knowledge that infringement is occurring and Meale believes the authorities could have “a pretty strong” case to pursue.
The Serious Crime Act 2007
Thus far we’ve only touched on police claims that site owners are suspected of criminal breaches of the Copyright, Designs & Patents Act 1988. The NFIB actually go on to warn of further offenses committed under the Serious Crime Act 2007. So what do these entail?
“The Serious Crime Act makes it a crime to intentionally encourage or assist someone else committing a crime, in the same way as it used to be a crime to ‘incite’ someone to commit a crime,” says Meale.
“So the references to that are just the police’s way of saying that, even if the operators are not for some reason the ones doing the ‘communicating to the public’, they still suspect they are guilty because they are encouraging those other people to do so.”
UK based torrent sites versus sites based overseas
A question raised by some in respect of the recent police threats concern the complex issue of jurisdictions. For example, can a UK site owner be held accountable by UK police if his equipment is located elsewhere?
“Some operators may feel they are safe from the British police because their servers are based overseas. But if the criminal offence of ‘communicating to the public’ is treated in the same way as the civil version, this won’t necessarily help. This is because the European Court of Justice has decided that when data is streamed from a server outside of the UK into it, that is enough for an infringement of copyright in the UK provided that the operator was targeting the public in the UK,” says Meale.
TorrentFreak is aware that site operators in Europe and indeed on the other side of the world have received letters from NFIB warning them that they are breaching UK laws. With that in mind, should a foreign operator of an overseas website really fear police in another country?
“Individuals living outside of the UK might still be committing offenses, but they are in a better position from a practical point of view – they are not in the country for the police to come and arrest them. In theory they might be extradited, or if in Europe perhaps find themselves the subject of a European Arrest Warrant, but going after them will require a lot more effort on the part of the police,” Meale concludes.
Thus far at least one site has shutdown on receipt of a police letter but the majority appear to be staying open. Questions are being asked behind the scenes whether the campaign is just another industry scare tactic or something that really has teeth. Of course, only the police have the answers so it’s up to each individual site operator to weigh the risks against the benefits.