But no, I'm not intimately familiar with the English (and Welsh) Civil Procedure Rules. I keep meaning to read them, but never get around to it.
However, if I'm reading Part 19 of the CPR correctly, which I think is the relevant part, under 19.4(2) any person wishing to become a party to a case can apply to the court for permission to be added, and under 19.2(2), the court can order that they be added if "it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings" or "there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue".
It is entirely possible that at least one of these conditions would be satisfied in some of the above cases, and if there is a doubt, there is still nothing (in theory) preventing an application for permission to be made. However, I am not a lawyer, and certainly not an expert on English procedural law, so am happy to be corrected on the above.
TPB weren't informed of the proceedings. The judge discussed whether or not to involve them, and decided against it as "it would be impracticable, or at least disproportionate, to require joinder or service of the operators or users of TPB" (see paragraph 12 of the judgment).
Just to expand on what I wrote before (to a rather considerable degree - apologies in advance), the simple reason is that if TPB was put on trial, the record labels might have lost, or at least not won as much - that is what happened in the earlier case.
The first case on site-blocking, (using the vaguely-worded s97A, CDPA) was when the Hollywood bunch sued Newzbin directly (Newzbin was being run by a UK-registered company) - the trial (in March 2010) went spectacularly badly for Newzbin (the judge seemed rather unconvinced by their witnesses, and their initial lawyer had to drop out mid-trial and has since been disbarred for his conduct), but while the judge ruled the site was involved in copyright infringement, and ordered a blocking injunction, he limited it only to material covered by the claimant's copyrights (see the final paragraph of the judgment) for the reasons often brought up against broad site-blocking. This meant that Hollywood would have had to notify Newzbin of every file the wanted blocked. Of course, Newzbin then collapsed under the legal costs and was reborn as Newzbin2.
Following this failure, the Studios came back 12 months later (July 2011) and brought a second claim, under the same law, for the same order, but this time against BT (the UK's largest ISP), not the site. Here, a different judge decided to allow the broad blocking order, the main difference being that in this case the claim was supported by a range of other copyright lobbying groups (see paras 179-186 of the judgment). However, despite there being more groups on the claimant side, BT was the only defendant, and obviously has a different set of interests and priorities than Newzbin2.
Interestingly, there was a follow-up judgment (October 2011) to determine the nature of the ruling, and for that (following the publicity of the first ruling) other ISPs, and even a BT subscriber, made submissions to the court on the main point, but they were dismissed as being too late and irrelevant/untrustworthy (see paras 2-4 of the judgment). The blocking order was granted against BT, along with a massive costs order, which has scared off the ISPs from fighting these cases. In December and February the blocking order was expanded to cover Sky and TalkTalk respectively - neither opposed the orders.
Then we come on to January 2012, when the BPI went after TPB; they had asked the ISPs to block it, but they had refused without a court order as such blocking could count as illegal interception of communications data. So they sued the 6 major ISPs (under the cover of 9 record labels). However, the initial judge refused to grant the order noting that, unlike with Newzbin, TPB had never been ruled illegal in England and Wales, so the case was referred to trial on this issue. In quite a concise, well-worded and well-reasoned judgment, Arnold J came to the conclusion that the users and operators of TPB were infringing copyright. That finding was then used to grant this week's blocking order. ... So in theory, TPB was put on trial.
In practice, of course, that ruling was pretty meaningless. The ISPs didn't oppose it (due to lack of interest, and not wishing to be done for the BPI's legal costs). While others might have been able to make submissions (although I'm not sure if anyone in the UK had the means and will to do so), they would have had to have intervened at some point between the 20 January referral order and the hearing on 9th February. Which means they would have had to have found out about the case, found lawyers, prepared their arguments and gathered evidence in less than three weeks. The biggest problem there being the first part; I try to keep an eye on these sorts of legal developments, but didn't hear anything about this case until the BPI was issuing press releases about it after the ruling - the case name is random enough to make it hard to search for, and court hearings are only published a day in advance in the UK. So much for open justice.
The result of this is that all the arguments and evidence submitted were by the BPI. So (as in the Newzbin2 case) no cross-examination, no challenging of the basic premises, no defences discussed (such as freedom of expression - which is respected over here, thank-you-very-much - or proportionality). This is particularly important as in the Newzbin2 case, some of the evidence which is quoted in the judgment is demonstrably false, so who knows what lies were presented in their "considerable volume of evidence".
The judge did discuss the lack of involvement from operators or users of TPB in paras 9-15). While noting that the users would be "adversely affected" by any order, he dismissed the problem on the grounds that there was no legal requirement that they be present (as the case was against the ISPs), the operators would be hard to find and unlikely to intervene (based on similar attempts in Swedish cases), and the users would be hard and costly to identify.
The main lesson to learn from this is what various groups have been arguing for some time; judicial oversight alone is not enough in an adversarial legal system. We saw this problem with issuing of NPOs to identify file-sharers (the ACS:Law business etc.), we saw this in the US with the seizure of domain names, and we will see it with payment blocking orders when they appear in the UK later this year. An adversarial legal system does not work without an adversary. If the court can't find an interested party, it should find some sort of public defender.
That said, there is some good news in this area; when GoldenEye sort an order requiring an ISP to hand over details of alleged file-sharers, while the ISP was happy to comply, the initial judge (technically a master, not a judge) realised that this was a controversial issue (due to all the complaints about him rubber-stamping these orders in the past) referred it to a full judge (the same as in the above cases) and he then personally invited Consumer Focus to intervene, and they did so. Arnold J was no doubt aware of their interests in these issues, having talked with some of their people (iirc). It's a pity he didn't think of doing something similar in The Pirate Bay case...
This isn't much of an expansion, Newzbin2 was ordered blocked last year, but it is a major step. The big problem here is the lack of any sort of trial. While there was a ruling back in February, declaring that the operators and users of The Pirate Bay were probably infringing copyright, the ISPs didn't try to make a case (for fear of massive costs orders), and the Pirate Bay was given no opportunity to argue anything. As for today's order, looking through the Court listings, there wasn't even a hearing, so it was probably all done through written applications.
This highlights how judicial oversight alone isn't enough (in a common law system) to ensure justice is done. Without an adversary to challenge the claimants (record companies), none of the possible defences, or issues (such as proportionality, anti-competitive practices, or negative consequences on people like Dan Bull) can be raised.
Whether the end result is right or not, it's not justice when a few companies can have a website blocked, with no one from the website or elsewhere in a position to challenge or question it.
tldr; the court was happy that information could be stolen, but on the facts, this specific law couldn't apply.
Reading the judgment, it looks like they are quite happy that copying code *could* be theft, but in this case, under this specific law, there need to be some physical goods involved.
Iirc (and I'm no expert on US law), there's no federal theft law, so definitions of steal etc. will presumably be left to state legislation. This case concerned the National Stolen Property Act, which covers someone who "transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money... knowing the same to have been stolen, converted or taken by fraud." The Court seems happy that the information has been stolen (hence the otherwise confusing references to theft), but in order for there to be an offence under the NSPA, something physical (i.e. goods etc.) must have been moved across a border.
The court does refer to Dowling, but also contrasts this case with US v Bottone, where the NSPA *was* used when information (to do with drugs) was photocopied and then taken across a border, as the papers counted as goods. The difference here (which is understandably unsatisfactory from a legal point of view) is that there were no physical goods. As the court notes "theft and subsequent interstate transmission of purely intangible property is beyond the scope of the NSPA."
The implication is that had he not merely uploaded the files to a server (in Germany?) but burned them onto a CD, and then taken that CD across a State or National border, his conviction would have been upheld. There's a brief discussion (in I B) of the fact that he later did take the code across a state border on a laptop or flash drive, but they found that the delay in copying the files to the laptop (i.e. some time after the original "theft") defeated the NSPA.
As for copyright not being property, I think people have a tendency to mistake property for physical property in these sorts of discussions. There are all kinds of different types of property, including copyright; all it means is that the rights etc. exist independent of a person (so can be transferred, identified and so on).
To contrast this with the UK (or, at least, England and Wales), here information has been explicitly ruled not to be property (most notably in Oxford v Moss, but also obiter by some of the House of Lords in Boardman v Phipps) which means that information itself cannot be stolen (as that requires property).
However, that doesn't preclude the actual copyright or patent from being stolen, but constructing a situation where that could occur is rather difficult, as one would need to actually deprive the copyright owner of their rights, not merely ignore them. I had a brief discussion with a criminal law lecturer about this a while back, and while some types of copyfraud might work (i.e. when someone claims another's copyright, and tries to enforce it against them), it is unlikely to ever see a courtroom.
Reading the judgment, I get the impression the judge really tried to get details of the evidence-gathering from the claimants, and succeeded to some extent. The problem is that the claimant said "this works and is good, we have a witness saying so" (although one who admitted he didn't know how the tech worked), and Consumer Focus (who were "defending", see below) had another who said it probably didn't work.
The judge therefore ruled that the evidence might be suitable. However, as this wasn't a trial, he wasn't in a position to rule on whether the evidence is actually any good. It's a fairly complex procedural issue, but this was simply an application for a pre-trial order to get information needed to bring a full claim.
The really depressing thing about this judgment is that it nearly didn't happen. The claim first went before Chief Master Winegarten (who issued many of these orders before), and he seems to have decided (probably due to all the criticism he received last time around) to refer it to a full judge (Masters are sort of like deputy judges). Arnold J (the current main copyright judge in the UK), noting that O2 wasn't remotely interested in fighting the application provided it got paid, invited Consumer Focus to intervene if they wanted to (possibly due to having met their copyright-lobbyist person at a few events and knowing they're interested in this sort of thing).
The title of this article is misleading, but the original article, and inquiry document make it quite clear it's just the All-Party Group asking these quests. There are APGs on all sorts of topics, it's a way for MPs with similar interests to get together and get direct lobbying support. In this case, the APIPG (which seems to have a minor cross-over with PICTFOR, the ICT group (that holds quite a few open debates and talks, including on copyright), and seems to be made up of avid copyright enforcement supporters (at least one of whom I've spoken to).
It doesn't surprise me in the least that the Alliance Against IP Theft is behind the APG. The "Alliance" has been lurking in the background as a giant enforcement lobbying group in the UK for a few years now, a combination of all those acronymed groups, that want to make more money for themselves, technology be damned.
I'll try to get something in for this, but I have a feeling it will fall on deaf ears.
While the inquiry was established (and funded) by the government, it is more like a judicial inquiry, run by a judge with help from barristers etc., rather than a government one. Judges in the UK are required to be independent of politics and government, and so they care more about finding the facts than about doing what is politically convenient.
It does not surprise me at all that Lord Justice Leveson is happy to get information from WikiLeaks; it is not like all the other organisations he is dealing with are paragons of virtue - that is part of the point of the trial. If they have information that could help the inquiry, they could help. Whether what Wikileaks says is evidenced enough to be of any use is another matter.
As an aside, the "Lord Justice" is merely a judicial title given to members of the Court of Appeal, Leveson LJ is not a member of the House of Lords nor a member of the Supreme Court (who are traditionally allowed to call themselves "Lord" or "Lady"). Along with all (male) High Court and above judges, he is addressed as "my Lord" in court, but that's an honorary/traditional thing, and limited to court stuff. Outside that he is just a knight and Privy Counsellor.
Under English law, it may well be stealing as they're assuming they have the right to dispose of someone else's money as they see fit. However, they'd also have to be doing it dishonestly, and proving that could be awkward, but not impossible.
So yes, it could well be theft (under some laws), probably is some kind of fraud (almost certainly the "conspiracy to defraud" that is ever so popular in the UK with copyright enforcement groups) and may be a few other things.
The mistake isn't thinking of IP as valid property, but thinking it as 'property' in lay terms (i.e. as something naturally scarce, and hence valuable) as opposed to 'property' in the legal sense. Legally there are all sorts of types of property and proprietary rights and interests, including intangible ones (like the right to take money out of a bank account), and un-scarce ones (like the right to walk across someone else's land).
Quite a good analogy is in terms of owning a house. When you talk about property, most people think about houses and what not; something you own, is yours, and we even get people arguing that the public domain is like kicking them out of their house after n years. But it isn't. Copyright is like renting/leasing. It's still a proprietary interest (the leasehold is still property), but you're only borrowing the various exclusive rights (to possession in a lease, to copy etc. in copyright) and have to give them back when the time is up.
Using this analogy, you can see clearly why copyright extensions are unfair; it would be like a tenant saying "I've had this tenancy for n years, I'd be better off if I had it for an extra p years, but I'm not going to pay you any more for it (i.e. create new content)."
Sadly, the landlord in this analogy is the public, and we're really bad at making our case heard.
There seem to be a few other odd entries in that list, such as this article from the Independent (one of the UK's major newspapers) - I wonder if they've simply done a search (presumably on Google) for certain terms (possibly including "torrent" and "innocent", both of which appear in the Independent article) and submitted that list to Google.
... because what we really need is to make the legal systems even less accessible, with less information available to even those few able to afford these services.
Surely it's in the public interest that legal information be as easy to access as possible anyway?
As for the argument about having access to these documents making legal work easier and cheaper, how is that not a good thing for everyone? We want legal services to be as simple, accessible and cheap as possible.
[I'm not a lawyer (yet), but am also not USian, and we don't seem to do the whole "publishing court filings" thing over here - at least, I've never come across any on Westlaw et al.]
No, this is a great thing; the UK authorities (well, technically the English and Welsh ones, the High Court doesn't have jurisdiction over Scotland or Northern Ireland, and it remains to be seen if the ISPs will extend the blocks there) have found a great way to encourage thousands if not millions of young people to learn about circumventing censorship. That means that when the authorities here decide to start censoring stuff based more on politics than law, there will be plenty of tools available to work around it.
As expected, not only was no one there representing the Pirate Bay (or the ISPs users; not surprising given that no one knew this was coming), but the ISPs didn't even bother to show up or send in written submissions. In fact, it seems that they went out of their way to not interact with the Court at all - possibly fearing the large costs order BT suffered when they dared to challenge the Newzbin2 order (even though everyone agreed it was a good idea for them to do so).
Of course, in the end they'll still end up with the bill for filtering websites, and as with the DEA, they'll realise far too late how bad this sort of thing is for their business. Sadly there's no one left in the UK with the resources to stand up in courts for ordinary Internet users, who cares about doing so (although the same could be said for most Internet users...).
The EU doesn't have a DMCA as such, instead is has the more general protections for caching and hosting services, and "mere conduits", found in the e-commerce directive (00/31). There's no specific take-down procedure, but the first two limitations on liability can be defeated by "actual knowledge or information" about illegality; i.e. if someone notifies you.
These limitations were successfully used in the TVLinks case a few years back, but haven't worked (so far) in the O'Dwyr extradition case. Also, coming from a Directive, they're rather vague and open to interpretation.
In terms of conspiracy to defraud, I should have spotted that as a possibility straight away; it was used (unsuccessfully) in the OiNK case, and has been threatened quite a few times since. It's incredibly broad, so should be much easier to prove than copyright infringement (with all those pesky things like "prejudicial effect" and "actual loss", or even "copyright"...). Wikipedia has quite a good, if legally technical, summary of the offence.
That's also how they manage to get the ridiculous "10 years imprisonment for downloading" claim, although it's still completely unreasonable.
I don't know about Wishart in particular, but there does seem to have been a dinner, which MPs were present at, "celebrating the work of Feargal Sharkey at UK Music" only a couple of weeks ago.
Louise Mensch (the source for that) is another of those hardline pro-copyright types, and just happens to be an author and married to the manager of some high-profile 80s pop groups.
It's quite straightforward really, we have a coalition government. Each Party controls one of the relevant departments, and they're fighting over control of these things.
On one side you have the Conservatives who, along with Labour (in power when the DEA was passed) were very heavily lobbied over this sort of thing (lots of private meetings, tickets to events, that kind of stuff).
On the other side, you have the Lib Dems, who are answerable to their members on policy grounds, and have a few vocal MPs who understand the Internet (and evidence). They were a minor force during the DEA debate, so seem to have been mostly ignored re lobbying.
At the moment, the Conservatives control DCMS (the Department of Culture, Media and Support) which is under Jeremy Hunt and Ed Vaizey (the latter has been running the closed-door meetings on web-blocking), which has been pushing for a larger clampdown on copyright (as you might expect from a "Media" department; i.e. answerable to the big media giants). Then the Lib Dems control DBIS (the Department of Business, Innovation and Skills) - under Vince Cable (who announced the plans to shelve the web-blocking parts of the DEA) - which has the policy brief for the DEA, runs the IPO and which is answerable to businesses, and cares about innovation etc.
It's not all that hard to see why there might be conflict here...
That said, the IPO isn't completely unbiased; one of their recent reports contained a wrongly-applied, inaccurately-copied, wrongly-cited (and with an obvious typo) statistic for losses, from a copyright industry (I think Hollywood) source, based on a paper, quoting the draft results of a survey, noting that it was changed in the final version, which was never published. It's quite impressive that they managed to get nearly every step of that wrong.
Fraud is the all-purpose offence that has been used in copyright infringement cases (such as the failed trial of the OiNK operators, or the more recent cinema/iPhone uploader). Basically, copyright infringement can be quite a bit harder to develop and establish; fraud is the easy way out.
Also, if it helps, downloading is definitely not "theft" or "stealing" in the UK; there are a couple of cases (one from the House of Lords) which ruled that information (i.e. a song) can't be property.
Also, for those interested, the relevant laws on criminal copyright infringement are s107 and s198 of the CDPA 1988, although it seems the site operators have been arrested for Fraud (despite there being case law going against them - the OiNK trial).
I knew that the IFPI were getting cosy with UK law enforcement (particularly the City of London Police, who are indirectly controlled by local businesses, including the IFPI), but I thought that was just over advertisers and blocking payment providers.
That said, Nominet has been working semi-secretly (under pressure from police forces) to implement a domain-name seizure process, but that would only apply to .uk domain names. For SOCA (basically the UK's FBI, but not nearly as old or powerful) to decide to shut down a site... without a trial (I assume), is quite a step.
One wonders why the Hollywood studios bothered taking BT (and now TalkTalk) to court to get Newzbin blocked, if they could just set SOCA on it.
Re: Re: Expanding on the above..
The UK doesn't have Rules of Civil Procedure.
But no, I'm not intimately familiar with the English (and Welsh) Civil Procedure Rules. I keep meaning to read them, but never get around to it.
However, if I'm reading Part 19 of the CPR correctly, which I think is the relevant part, under 19.4(2) any person wishing to become a party to a case can apply to the court for permission to be added, and under 19.2(2), the court can order that they be added if "it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings" or "there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue".
It is entirely possible that at least one of these conditions would be satisfied in some of the above cases, and if there is a doubt, there is still nothing (in theory) preventing an application for permission to be made. However, I am not a lawyer, and certainly not an expert on English procedural law, so am happy to be corrected on the above.
Re:
TPB weren't informed of the proceedings. The judge discussed whether or not to involve them, and decided against it as "it would be impracticable, or at least disproportionate, to require joinder or service of the operators or users of TPB" (see paragraph 12 of the judgment).
Expanding on the above..
Just to expand on what I wrote before (to a rather considerable degree - apologies in advance), the simple reason is that if TPB was put on trial, the record labels might have lost, or at least not won as much - that is what happened in the earlier case.
The first case on site-blocking, (using the vaguely-worded s97A, CDPA) was when the Hollywood bunch sued Newzbin directly (Newzbin was being run by a UK-registered company) - the trial (in March 2010) went spectacularly badly for Newzbin (the judge seemed rather unconvinced by their witnesses, and their initial lawyer had to drop out mid-trial and has since been disbarred for his conduct), but while the judge ruled the site was involved in copyright infringement, and ordered a blocking injunction, he limited it only to material covered by the claimant's copyrights (see the final paragraph of the judgment) for the reasons often brought up against broad site-blocking. This meant that Hollywood would have had to notify Newzbin of every file the wanted blocked. Of course, Newzbin then collapsed under the legal costs and was reborn as Newzbin2.
Following this failure, the Studios came back 12 months later (July 2011) and brought a second claim, under the same law, for the same order, but this time against BT (the UK's largest ISP), not the site. Here, a different judge decided to allow the broad blocking order, the main difference being that in this case the claim was supported by a range of other copyright lobbying groups (see paras 179-186 of the judgment). However, despite there being more groups on the claimant side, BT was the only defendant, and obviously has a different set of interests and priorities than Newzbin2.
Interestingly, there was a follow-up judgment (October 2011) to determine the nature of the ruling, and for that (following the publicity of the first ruling) other ISPs, and even a BT subscriber, made submissions to the court on the main point, but they were dismissed as being too late and irrelevant/untrustworthy (see paras 2-4 of the judgment). The blocking order was granted against BT, along with a massive costs order, which has scared off the ISPs from fighting these cases. In December and February the blocking order was expanded to cover Sky and TalkTalk respectively - neither opposed the orders.
Then we come on to January 2012, when the BPI went after TPB; they had asked the ISPs to block it, but they had refused without a court order as such blocking could count as illegal interception of communications data. So they sued the 6 major ISPs (under the cover of 9 record labels). However, the initial judge refused to grant the order noting that, unlike with Newzbin, TPB had never been ruled illegal in England and Wales, so the case was referred to trial on this issue. In quite a concise, well-worded and well-reasoned judgment, Arnold J came to the conclusion that the users and operators of TPB were infringing copyright. That finding was then used to grant this week's blocking order. ... So in theory, TPB was put on trial.
In practice, of course, that ruling was pretty meaningless. The ISPs didn't oppose it (due to lack of interest, and not wishing to be done for the BPI's legal costs). While others might have been able to make submissions (although I'm not sure if anyone in the UK had the means and will to do so), they would have had to have intervened at some point between the 20 January referral order and the hearing on 9th February. Which means they would have had to have found out about the case, found lawyers, prepared their arguments and gathered evidence in less than three weeks. The biggest problem there being the first part; I try to keep an eye on these sorts of legal developments, but didn't hear anything about this case until the BPI was issuing press releases about it after the ruling - the case name is random enough to make it hard to search for, and court hearings are only published a day in advance in the UK. So much for open justice.
The result of this is that all the arguments and evidence submitted were by the BPI. So (as in the Newzbin2 case) no cross-examination, no challenging of the basic premises, no defences discussed (such as freedom of expression - which is respected over here, thank-you-very-much - or proportionality). This is particularly important as in the Newzbin2 case, some of the evidence which is quoted in the judgment is demonstrably false, so who knows what lies were presented in their "considerable volume of evidence".
The judge did discuss the lack of involvement from operators or users of TPB in paras 9-15). While noting that the users would be "adversely affected" by any order, he dismissed the problem on the grounds that there was no legal requirement that they be present (as the case was against the ISPs), the operators would be hard to find and unlikely to intervene (based on similar attempts in Swedish cases), and the users would be hard and costly to identify.
The main lesson to learn from this is what various groups have been arguing for some time; judicial oversight alone is not enough in an adversarial legal system. We saw this problem with issuing of NPOs to identify file-sharers (the ACS:Law business etc.), we saw this in the US with the seizure of domain names, and we will see it with payment blocking orders when they appear in the UK later this year. An adversarial legal system does not work without an adversary. If the court can't find an interested party, it should find some sort of public defender.
That said, there is some good news in this area; when GoldenEye sort an order requiring an ISP to hand over details of alleged file-sharers, while the ISP was happy to comply, the initial judge (technically a master, not a judge) realised that this was a controversial issue (due to all the complaints about him rubber-stamping these orders in the past) referred it to a full judge (the same as in the above cases) and he then personally invited Consumer Focus to intervene, and they did so. Arnold J was no doubt aware of their interests in these issues, having talked with some of their people (iirc). It's a pity he didn't think of doing something similar in The Pirate Bay case...
Good thing the site got a fair trial...
This isn't much of an expansion, Newzbin2 was ordered blocked last year, but it is a major step. The big problem here is the lack of any sort of trial. While there was a ruling back in February, declaring that the operators and users of The Pirate Bay were probably infringing copyright, the ISPs didn't try to make a case (for fear of massive costs orders), and the Pirate Bay was given no opportunity to argue anything. As for today's order, looking through the Court listings, there wasn't even a hearing, so it was probably all done through written applications.
This highlights how judicial oversight alone isn't enough (in a common law system) to ensure justice is done. Without an adversary to challenge the claimants (record companies), none of the possible defences, or issues (such as proportionality, anti-competitive practices, or negative consequences on people like Dan Bull) can be raised.
Whether the end result is right or not, it's not justice when a few companies can have a website blocked, with no one from the website or elsewhere in a position to challenge or question it.
(untitled comment)
tldr; the court was happy that information could be stolen, but on the facts, this specific law couldn't apply.
Reading the judgment, it looks like they are quite happy that copying code *could* be theft, but in this case, under this specific law, there need to be some physical goods involved.
Iirc (and I'm no expert on US law), there's no federal theft law, so definitions of steal etc. will presumably be left to state legislation. This case concerned the National Stolen Property Act, which covers someone who "transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money... knowing the same to have been stolen, converted or taken by fraud." The Court seems happy that the information has been stolen (hence the otherwise confusing references to theft), but in order for there to be an offence under the NSPA, something physical (i.e. goods etc.) must have been moved across a border.
The court does refer to Dowling, but also contrasts this case with US v Bottone, where the NSPA *was* used when information (to do with drugs) was photocopied and then taken across a border, as the papers counted as goods. The difference here (which is understandably unsatisfactory from a legal point of view) is that there were no physical goods. As the court notes "theft and subsequent interstate transmission of purely intangible property is beyond the scope of the NSPA."
The implication is that had he not merely uploaded the files to a server (in Germany?) but burned them onto a CD, and then taken that CD across a State or National border, his conviction would have been upheld. There's a brief discussion (in I B) of the fact that he later did take the code across a state border on a laptop or flash drive, but they found that the delay in copying the files to the laptop (i.e. some time after the original "theft") defeated the NSPA.
As for copyright not being property, I think people have a tendency to mistake property for physical property in these sorts of discussions. There are all kinds of different types of property, including copyright; all it means is that the rights etc. exist independent of a person (so can be transferred, identified and so on).
To contrast this with the UK (or, at least, England and Wales), here information has been explicitly ruled not to be property (most notably in Oxford v Moss, but also obiter by some of the House of Lords in Boardman v Phipps) which means that information itself cannot be stolen (as that requires property).
However, that doesn't preclude the actual copyright or patent from being stolen, but constructing a situation where that could occur is rather difficult, as one would need to actually deprive the copyright owner of their rights, not merely ignore them. I had a brief discussion with a criminal law lecturer about this a while back, and while some types of copyfraud might work (i.e. when someone claims another's copyright, and tries to enforce it against them), it is unlikely to ever see a courtroom.
Evidence
Reading the judgment, I get the impression the judge really tried to get details of the evidence-gathering from the claimants, and succeeded to some extent. The problem is that the claimant said "this works and is good, we have a witness saying so" (although one who admitted he didn't know how the tech worked), and Consumer Focus (who were "defending", see below) had another who said it probably didn't work.
The judge therefore ruled that the evidence might be suitable. However, as this wasn't a trial, he wasn't in a position to rule on whether the evidence is actually any good. It's a fairly complex procedural issue, but this was simply an application for a pre-trial order to get information needed to bring a full claim.
The really depressing thing about this judgment is that it nearly didn't happen. The claim first went before Chief Master Winegarten (who issued many of these orders before), and he seems to have decided (probably due to all the criticism he received last time around) to refer it to a full judge (Masters are sort of like deputy judges). Arnold J (the current main copyright judge in the UK), noting that O2 wasn't remotely interested in fighting the application provided it got paid, invited Consumer Focus to intervene if they wanted to (possibly due to having met their copyright-lobbyist person at a few events and knowing they're interested in this sort of thing).
Re:
The title of this article is misleading, but the original article, and inquiry document make it quite clear it's just the All-Party Group asking these quests. There are APGs on all sorts of topics, it's a way for MPs with similar interests to get together and get direct lobbying support. In this case, the APIPG (which seems to have a minor cross-over with PICTFOR, the ICT group (that holds quite a few open debates and talks, including on copyright), and seems to be made up of avid copyright enforcement supporters (at least one of whom I've spoken to).
It doesn't surprise me in the least that the Alliance Against IP Theft is behind the APG. The "Alliance" has been lurking in the background as a giant enforcement lobbying group in the UK for a few years now, a combination of all those acronymed groups, that want to make more money for themselves, technology be damned.
I'll try to get something in for this, but I have a feeling it will fall on deaf ears.
Not the Government
While the inquiry was established (and funded) by the government, it is more like a judicial inquiry, run by a judge with help from barristers etc., rather than a government one. Judges in the UK are required to be independent of politics and government, and so they care more about finding the facts than about doing what is politically convenient.
It does not surprise me at all that Lord Justice Leveson is happy to get information from WikiLeaks; it is not like all the other organisations he is dealing with are paragons of virtue - that is part of the point of the trial. If they have information that could help the inquiry, they could help. Whether what Wikileaks says is evidenced enough to be of any use is another matter.
As an aside, the "Lord Justice" is merely a judicial title given to members of the Court of Appeal, Leveson LJ is not a member of the House of Lords nor a member of the Supreme Court (who are traditionally allowed to call themselves "Lord" or "Lady"). Along with all (male) High Court and above judges, he is addressed as "my Lord" in court, but that's an honorary/traditional thing, and limited to court stuff. Outside that he is just a knight and Privy Counsellor.
(untitled comment)
Under English law, it may well be stealing as they're assuming they have the right to dispose of someone else's money as they see fit. However, they'd also have to be doing it dishonestly, and proving that could be awkward, but not impossible.
So yes, it could well be theft (under some laws), probably is some kind of fraud (almost certainly the "conspiracy to defraud" that is ever so popular in the UK with copyright enforcement groups) and may be a few other things.
Property analogies
The mistake isn't thinking of IP as valid property, but thinking it as 'property' in lay terms (i.e. as something naturally scarce, and hence valuable) as opposed to 'property' in the legal sense. Legally there are all sorts of types of property and proprietary rights and interests, including intangible ones (like the right to take money out of a bank account), and un-scarce ones (like the right to walk across someone else's land).
Quite a good analogy is in terms of owning a house. When you talk about property, most people think about houses and what not; something you own, is yours, and we even get people arguing that the public domain is like kicking them out of their house after n years. But it isn't. Copyright is like renting/leasing. It's still a proprietary interest (the leasehold is still property), but you're only borrowing the various exclusive rights (to possession in a lease, to copy etc. in copyright) and have to give them back when the time is up.
Using this analogy, you can see clearly why copyright extensions are unfair; it would be like a tenant saying "I've had this tenancy for n years, I'd be better off if I had it for an extra p years, but I'm not going to pay you any more for it (i.e. create new content)."
Sadly, the landlord in this analogy is the public, and we're really bad at making our case heard.
Other interesting hits...
There seem to be a few other odd entries in that list, such as this article from the Independent (one of the UK's major newspapers) - I wonder if they've simply done a search (presumably on Google) for certain terms (possibly including "torrent" and "innocent", both of which appear in the Independent article) and submitted that list to Google.
A great idea...
... because what we really need is to make the legal systems even less accessible, with less information available to even those few able to afford these services.
Surely it's in the public interest that legal information be as easy to access as possible anyway?
As for the argument about having access to these documents making legal work easier and cheaper, how is that not a good thing for everyone? We want legal services to be as simple, accessible and cheap as possible.
[I'm not a lawyer (yet), but am also not USian, and we don't seem to do the whole "publishing court filings" thing over here - at least, I've never come across any on Westlaw et al.]
(untitled comment)
No, this is a great thing; the UK authorities (well, technically the English and Welsh ones, the High Court doesn't have jurisdiction over Scotland or Northern Ireland, and it remains to be seen if the ISPs will extend the blocks there) have found a great way to encourage thousands if not millions of young people to learn about circumventing censorship. That means that when the authorities here decide to start censoring stuff based more on politics than law, there will be plenty of tools available to work around it.
ISPs not putting up a fight
As expected, not only was no one there representing the Pirate Bay (or the ISPs users; not surprising given that no one knew this was coming), but the ISPs didn't even bother to show up or send in written submissions. In fact, it seems that they went out of their way to not interact with the Court at all - possibly fearing the large costs order BT suffered when they dared to challenge the Newzbin2 order (even though everyone agreed it was a good idea for them to do so).
Of course, in the end they'll still end up with the bill for filtering websites, and as with the DEA, they'll realise far too late how bad this sort of thing is for their business. Sadly there's no one left in the UK with the resources to stand up in courts for ordinary Internet users, who cares about doing so (although the same could be said for most Internet users...).
EU DMCA
The EU doesn't have a DMCA as such, instead is has the more general protections for caching and hosting services, and "mere conduits", found in the e-commerce directive (00/31). There's no specific take-down procedure, but the first two limitations on liability can be defeated by "actual knowledge or information" about illegality; i.e. if someone notifies you.
These limitations were successfully used in the TVLinks case a few years back, but haven't worked (so far) in the O'Dwyr extradition case. Also, coming from a Directive, they're rather vague and open to interpretation.
In terms of conspiracy to defraud, I should have spotted that as a possibility straight away; it was used (unsuccessfully) in the OiNK case, and has been threatened quite a few times since. It's incredibly broad, so should be much easier to prove than copyright infringement (with all those pesky things like "prejudicial effect" and "actual loss", or even "copyright"...). Wikipedia has quite a good, if legally technical, summary of the offence.
That's also how they manage to get the ridiculous "10 years imprisonment for downloading" claim, although it's still completely unreasonable.
(untitled comment)
I don't know about Wishart in particular, but there does seem to have been a dinner, which MPs were present at, "celebrating the work of Feargal Sharkey at UK Music" only a couple of weeks ago.
Louise Mensch (the source for that) is another of those hardline pro-copyright types, and just happens to be an author and married to the manager of some high-profile 80s pop groups.
Quite straightforward
It's quite straightforward really, we have a coalition government. Each Party controls one of the relevant departments, and they're fighting over control of these things.
On one side you have the Conservatives who, along with Labour (in power when the DEA was passed) were very heavily lobbied over this sort of thing (lots of private meetings, tickets to events, that kind of stuff).
On the other side, you have the Lib Dems, who are answerable to their members on policy grounds, and have a few vocal MPs who understand the Internet (and evidence). They were a minor force during the DEA debate, so seem to have been mostly ignored re lobbying.
At the moment, the Conservatives control DCMS (the Department of Culture, Media and Support) which is under Jeremy Hunt and Ed Vaizey (the latter has been running the closed-door meetings on web-blocking), which has been pushing for a larger clampdown on copyright (as you might expect from a "Media" department; i.e. answerable to the big media giants). Then the Lib Dems control DBIS (the Department of Business, Innovation and Skills) - under Vince Cable (who announced the plans to shelve the web-blocking parts of the DEA) - which has the policy brief for the DEA, runs the IPO and which is answerable to businesses, and cares about innovation etc.
It's not all that hard to see why there might be conflict here...
That said, the IPO isn't completely unbiased; one of their recent reports contained a wrongly-applied, inaccurately-copied, wrongly-cited (and with an obvious typo) statistic for losses, from a copyright industry (I think Hollywood) source, based on a paper, quoting the draft results of a survey, noting that it was changed in the final version, which was never published. It's quite impressive that they managed to get nearly every step of that wrong.
Re: Fraud?
Fraud is the all-purpose offence that has been used in copyright infringement cases (such as the failed trial of the OiNK operators, or the more recent cinema/iPhone uploader). Basically, copyright infringement can be quite a bit harder to develop and establish; fraud is the easy way out.
Music being stolen
Also, if it helps, downloading is definitely not "theft" or "stealing" in the UK; there are a couple of cases (one from the House of Lords) which ruled that information (i.e. a song) can't be property.
Also, for those interested, the relevant laws on criminal copyright infringement are s107 and s198 of the CDPA 1988, although it seems the site operators have been arrested for Fraud (despite there being case law going against them - the OiNK trial).
(untitled comment)
I knew that the IFPI were getting cosy with UK law enforcement (particularly the City of London Police, who are indirectly controlled by local businesses, including the IFPI), but I thought that was just over advertisers and blocking payment providers.
That said, Nominet has been working semi-secretly (under pressure from police forces) to implement a domain-name seizure process, but that would only apply to .uk domain names. For SOCA (basically the UK's FBI, but not nearly as old or powerful) to decide to shut down a site... without a trial (I assume), is quite a step.
One wonders why the Hollywood studios bothered taking BT (and now TalkTalk) to court to get Newzbin blocked, if they could just set SOCA on it.