Criminal law is providing  fresh ammunition for British  rights-holders,  despairing of ever seeing the civil  law – in the form of  the Digital Economy Act copyright infringement measures -  ever being implemented. In this  latest phase of their battle against peer-to-peer file-sharers, British rights-holders are enlisting law enforcement officers to pursue owners of file-sharing  sites.   This development is of interest in light of  the ACTA debate in the European Union, where  the prospect of imposing criminal measures  for alleged online infringements was widely scrutinised.

 The story  has been reported by TorrentFreak and it is indeed, a new installment in the saga of the European copyright wars.

According to TorrentFreak, rights-holders  from the music, film and publishing industries  have been working with the City of London Police  since 2011. Previously, they were reported to be asking the police to shut off payment facilities  ( see IFPI gets police authorisation for Visa card shut-downs ).

This time the rights-holders  are partnering  the police in shutting down  file-sharing sites. They are  said to include the BPI, Federation against copyright theft (FACT) and the Publishers Association.  Specifically, they are working  with a new body known as the National Fraud Intelligence Bureau (NFIB), which   is a unit  ( in its own words)   dedicated to ‘prevent, deter and disrupt criminal activity’.

The NFIB has sent letters to certain unnamed websites and torrent trackers threatening them with indeterminate police action unless they make contact immediately. The letters (as per an example published by TorrentFreak) allege that the  NFIB  have ‘reasonable grounds to suspect that … you are involved in online copyright infringement’. 

The legal basis for  the NFIB letters   is contained in two pieces of law.  One is  the Serious Crime Act  2007. The other is the Copyright, Designs and Patents Act (CDPA).

This makes these letters quite different from previous right-holder actions, which were filed under civil law. The difference is the civil law deals with disputes between people and breaches of rights, criminal law is about the State taking action and holds out the penalty of going to jail.

Under the Serious Crime Act,  copyright infringement is considered in the same light as  drug trafficking, arms trafficking, people trafficking, prostitution, child sex abuse, armed robbery and money laundering.  Under S.107 of this law, ‘making, importing or distributing an article that infringes copyright’  is a criminal offence.

 Under Copyright, Designs and Patents Act, those actions may be considered criminal offences if done ‘for sale or hire’, ‘ in the course of a business’ or ‘otherwise than for private use’.  The CDPA also provides that the infringement does not have to be in the form of a ‘copy’ made  by the accused person, but may be for infringement by communicating the material to the public.   Communication to the public is the usual legal basis for rights-holder civil  law suits in respect of Internet infringement. (See my book where I discuss the notion of ‘indirect liability’ also known confusingly as secondary liability or third-party liability).

Under the CDPA, the accused websites would have to pass a legal test  for commercial  or business operation, and how much revenue they would have to be generating,  before they can be indicted under criminal law ( see also this explanation on TorrentFreak).

 The legal test for business operations  takes us into the realm of the now-apparently-dead ACTA. Under ACTA, one of the tests for criminal liability for copyright infringement would have been whether the activity was   ‘commercial scale’.

 This notion  of ‘commercial scale’ was much debated  and was considered to lack clarity. It was uncertain how big a business you would have to generate before you could be subject to criminal prosecution? Hence it was  one of the grounds on which the European Parliament rejected ACTA.

This move does indicate that the  rights-holders are running out of options. In the UK, the delay in  the implementation of the Digital Economy Act ( see DE Act delays prompt fresh ‘voluntary’ talks  ) has  stalled their efforts to go after individual file-sharers.  In the EU, they lost on ACTA.  So perhaps we should not be too surprised by this latest turn of events. However, in the context of the current European Union  attempts to reform copyright law, it is jumping the gun and arguably not helpful.

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For my account of the political battles over ACTA and the Digital Economy Act, see my forthcoming book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2013, UK rights-holders turn to criminal law in new anti-filesharing purge, in iptegrity.com, 23 June 2013. Commercial users - please contact me.

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