Police and “thieves” – copyright trolls

Late in the evening, a policeman knocks on the door. He presents you with a warrant to search your house and seize your computers: but particularly those belonging to your student son.

Some civilians come in and help load the vans. They are from two trade bodies. They believe your son has been aiding the distribution of their copyrighted music: peer to peer "file sharing".

The trade associations have conducted the investigation, presented the evidence to the police and persuaded them that this is a criminal matter. Now the associations are, in effect, raiding your house.

These private investigators will be present at police interviews, and will rifle through your electronic possessions. They will construct the case and explain to the police how serious your sons' "crime" is.

The police are unlikely to understand copyright law, and what kind of offences are criminal, and which are civil, and therefore not police matters. The police and Crown Prosecution Service are likely to follow the trade associations' advice. Shortly your son will be in court, facing fines or gaol sentences.

This may sound like a fantastical aberration, but this is roughly what has happened to several families in a series of privately investigated cases in the UK.

What links these cases is that they are not the result of a "crime wave", police interest, or a change in the law. Instead they are the result of private companies conducting private investigations and leveraging their close relations with the authorities.

The private investigators include the music group the BPI, the International Federation of Phonographic Industries IFPI, the Federation Against Copyright Theft (FACT) and the Motion Picture Association. Most of these are primarily involved in lobbying and PR activities.

One of the first of these private-police collaborations that came to light in the UK concerned OiNK. OiNK was an infamous and secretive file sharing site, specializing in music. It was accused, probably wrongly, of being a major source of pre-release music leaks. The investigations, led by IFPI, the BPI and Interpol, led to the site being closed in 2007, and several of the site users being taken to court. Alan Ellis, the site administrator, was accused of "conspiracy to defraud" as well as copyright infringement. Five others were accused of copyright infringement.

Geoff Taylor, head of the BPI, said: "That this individual [Ellis] now faces criminal charges will deter some, but no doubt others will be looking [to] move into this territory, and the authorities must keep up the pressure to deter the digital freeloaders."

A jury found Ellis not guilty of conspiracy to defraud. The copyright charges against Matthew Wyatt were dropped. While OiNK clearly promoted copyright infringement, the attempts to make examples of these individuals, and exaggerate the seriousness of their activities, backfired.

Pressure from the music industry to "deter the digital freeloaders" appears to have distorted the Crown Prosecution Service's priorities.

There are clearly questions to ask about the close relationship between private industry investigators, who have a direct commercial interest in the prosecutions, and the police and CPS, who are meant to be acting for all of us.

This problem surfaced again in Glasgow, where the police raided the home of Anne Muir, who had been file sharing Karaoke files, after investigations by the BPI and the International Federation of Phonographic Industries (IFPI).

She too was accused of criminal copyright infringement. The bar for non-commercial criminal copyright infringement is set quite high. The law says that she must have "distribute[d] otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright".

Essentially she had to have been seriously threatening the value of the copyright in the files. As a mere sharer, this seems pretty unlikely. However, not only were the police persuaded to raid her home, but she herself was persuaded to plead guilty to criminal copyright charges.

Perhaps the most disturbing case is that of Richard O'Dwyer, whose TV Shack site was closed down in 2010. The site linked to infringing TV streams. Now, US authorities want him to face charges in the USA, where he could face ten years in gaol. Jimmy Wales, the founder of Wikipedia, has helped spur on the fight led by O'Dwyer's mother to stop the extradition.

While the investigations this time seem to have been conducted by US law enforcement, with industry involvement, the copyright lobby groups have been cheerleading, and have certainly been instrumental in creating the US authorities' approach to online copyright enforcement. A leaked memo from the MPAA expresses their disappointment that more celebrities aren't speaking out in favour of O'Dwyer's extradition.

There seems little reason why O'Dwyer couldn't be prosecuted in the UK. Whatever the legal position – and the UK has conceded too much on extradition, according to groups like Liberty – it would be disproportionately harmful for him to be sent to a US gaol for offences that took place on UK soil.

Pornography and "speculative invoicing"

Although the music and film industry have regularly tried to make examples of individual file sharers in US courts, this has been less frequent in the UK. There have been some cases – like that of Anne Muir – but the worst practices are seen in bulk actions from smaller copyright holders.

Firms of solicitors have taken advantage of the same kinds of investigative techniques and legal powers, but at larger volumes, and in cruder ways. Sending bulk letters demanding payments for copyright infringement has become known as "speculative invoicing".

The technique is simple: record file sharers' public IP addresses and the time at which they were sharing their files; match the IP addresses to ISPs; ask a court to compel the ISPs to reveal the identity of the file sharers. Finally, send bulk letters to the alleged file sharers demanding costs and damages to avoid court action.

The business model therefore simply balanced off the cost of surveillance, court action and sending letters against the likely proportion of people who would pay up once threatened. As a business, there is a sound logic.

Unfortunately, the evidential process doesn't work so well. Not only is an ISP account holder not the same as an individual file sharer, who could be anyone using that Internet connection, but ISP logs aren't necessarily very accurate. Plus the techniques used to harvest IP addresses can themselves be flawed.

Worst still, the companies have scrupulously avoided taking anyone to court. They badger people, but because they know they couldn't really prove anything, won't risk testing their evidence in public.

The first well-known UK company to try this kind of scheme was Davenport Lyons, who pursued 25,000 victims until around 2009. They issued letters demanding costs and damages for alleged file sharing of games and pornography. They stopped after a barrage of complaints and investigations by Which? and exposure on the BBC's Watchdog.

Andrew Crossley's ACS:Law picked up where they left. His clients again included a lot of pornographers. ACS:Law attracted the attention of Anonymous, a loose network of Internet activists, who had been organizing 'Distributed Denial of Service' (DDoS) attacks against the websites of those they saw as enemies of Internet freedom.

As ACS:Law's website was brought down by a DDoS attack, their web server's file system was exposed to the public, resulting in their email records being leaked. This revealed the believed file sharing, names, addresses, and correspondence of those being accused by ACS:Law. Over 10,000 individuals were affected.

This disaster at last brought the whole practice to the attention of the courts. Up to this point, the requests for user data, called "Norwich Pharmacal Orders" (NPOs) had not been contested by the ISPs. The result was that judges would simply grant them, and ISPs would hand the data to firms like ACS:Law with no further ado. Now ISPs felt they had to oppose these requests.

After ACS:Law's tremendous data protection disaster, the Information Commissioner fined Crossley £1,000, saying that he had trouble paying since his business had shut down. The Solicitors Regulatory Authority saw things differently. Their disciplinary fined him £76,326.55 and suspended him from practicing for two years.

That however has not ended the thud, thud of the copyright trolling. Next up was the pornography company Golden Eye and "Ben Dover Productions" who gathered a number of companies to continue the same practice. This time, Consumer Focus opposed the NPO request for user data from ISPs on behalf of UK consumers as a whole.

Golden Eye were told that they could only seek user data relating to infringements of their own films' copyrights. This of course reduces the scale of their possible operation. So Golden Eye, along with Joybear Productions, Sweetmeats Productions, One Eyed Jack Productions and Easy on the Eye among others are appealing this decision, so that Golden Eye can work on their behalf to pursue their copyright claims.

The Open Rights Group wishes to oppose their appeal: if you want to donate towards our legal fund, we need £5,000, so anything you can give will help. Donate at openrightsgroup.org/donate

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