from the because-fuck-you dept
Last month, we wrote about an initial decision by the UK High Court to take away the private copying right that allowed people to rip their own CDs. This change in law had been sought by the public for so long that by the time it finally came into practice it didn’t really matter because (1) who the hell still buys CDs and (2) everyone who did already assumed that ripping those CDs was perfectly legal, because that’s the only sensible way of thinking about it.
Yet, last month, the UK High Court ruled that the government had somehow erred in putting a private copying right into law because the government didn’t believe the fanciful made up “losses” of the recording industry. However, it still left open the possibility that the law could be left in place if the government could come up with a good enough reason to keep the law in place. But, on Friday, it stomped out that hope, issuing a final ruling that makes it clear that the 3 UK citizens who still buy CDs cannot rip them into MP3s because the recording industry will die, or something along those lines.
As for why? Well, it appears that the UK government itself sided with the record labels and said “sure, get rid of the law that Parliament passed.”
The Secretary of State has accepted the position that the Regulations should be quashed. He states as follows:
?The Secretary of State welcomes the guidance which the Court has provided as to the correct approach to be adopted as a matter of law when considering the introduction of a private copying exception, and as to the scope and nature of the factual enquiries which are necessary. He will now take the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced. The Secretary of State has not decided on any specific course at this stage and wishes to take time to reflect before making any further decisions. He would not wish to create any uncertainty in the law by submitting that the Regulations remain in force while further policy decisions are made.
Given that the Secretary of State submits that a quashing order is appropriate at this stage, there is no necessity for a reference to the CJEU. As is made clear in the body of the Judgment, the Judge?s conclusion leading to the ruling that the decision was unlawful did not depend on his conclusions on issues of EU law, in particular as to the meaning of ?harm? (the issue identified by the Judge is a matter for a potential reference)?.
There is a separate question of whether all those CDs that were ripped in the past few months created newly infringing files or if those somehow get grandfathered in. Here, the court has decided that… it won’t bother answering that question and will punt and leave it for a future lawsuit to decide. Really. It goes on for a few pages weighing the two arguments and then says “meh, I’ll let someone else decide”:
I am not prepared to rule upon the position ex tunc. It seems to me that the declaration sought raises potentially complex and far reaching issues which it is appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer. It will be for a defendant in future proceedings to explore and raise this issue, including whether the effect of the fact that they relied at the time upon Section 28B creates some species of estoppel, legitimate expectation or fair use defence in private law and whether, if such exists, this goes to the cause of action or the remedy or both.
One hopes that the record labels aren’t so stupid as to actually go after someone for this, but this is the record labels we’re talking about and “suing fans” is about the only thing they know how to do these days.