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Thursday, 16 February 2012

SOCA backtrack on alarming RnBXclusive takedown notice, serious concerns remain

A popular music blog was shut down by the UK's Serious Organised Crime Agency (SOCA).  Visitors to the site yesterday were greeted with an alarming message that copyright violation carried up to 10 years jail time and a suggestion that a visitor's IP address had been captured and could be used to identify them.

The shutdown got worldwide attention and I spent yesterday afternoon in meetings with advocacy groups such as Big Brother Watch and the Open Rights Group discussing a coordinated response.  Open Digital and Big Brother Watch put out a combined statement.

Today, SOCA have backed down and revised the message on the site to a simple statement that it has taken control of the domain.

I have no problem with the police or rights holders taking targeted and proportionate action through the UK's criminal and civil court system against websites engaging in infringing behaviour.

But I have four serious concerns about this particular take-down.

SOCA Involvement

This site seems to be aimed at music fans. Having researched other similar sites over the last 3 years and judging by the look and feel of the blog on the Wayback Machine it looks unlikely there is any involvement of violent criminal gangs or other serious crime link, therefore I question the involvement of SOCA.

Other specialised police units such as the Met Police's Specialist Crime Division, which includes the Film Piracy Unit and specialist fraud teams, look far more suited to investigating this type of crime.

The involvement of SOCA risks diverting resources away from investigations into people trafficking and gun smuggling when other specialised agencies are better placed to understand the law in this area.

Inaccurate legal statements

The takedown page displayed yesterday was misleading as to the penalties in relation to copyright infringement and looks designed to cause worry and distress to visitors, many of whom may not have known they were visiting a dodgy site.

The statement that those downloading copyright infringing material could face ten years in prison is highly dubious.  Criminal penalties under the Copyright, Designs and Patents Act can carry up to ten years in prison, but are limited to distribution offences; i.e. uploading.

SOCA issued some confusing clarifications yesterday implying those downloading could be party to a conspiracy to defraud or involvement in other illegal criminal enterprises.  Legal experts yesterday questioned the fraud link and I find the insinuation that copyright infringement has suddenly become analogous with other criminal enterprises e.g. money laundering laughable.

The simple fact remain that downloading copyright infringing content remains a civil matter.

Distribution (uploading) of infringing material can become a criminal offence when it is done as part of a business or by an individual "to such an extent as to affect prejudicially the owner of the copyright" under S.107(1)(e) and (2A)(1) of the Copyright, Designs and Patents Act 1988.

Absence of a court order

SOCA said in a statement yesterday that the takedown was done in co-operation with the hosting provider due to violations of the host's terms and conditions and that a court order was not sought.

I have no knowledge of the hosting provider, but such a move can typically put an awful amount of pressure on a small ISP faced with a request from any police force, never mind SOCA. Small ISPs are unlikely to have in house legal support and may not be able to afford costly specialist legal advice in this area, and may instead opt to take down any site as the safest option.

Whilst I'm less worried about sites taken down for copyright infringement, I'm very concerned about unsubstantiated reports I received indicating that UK police had in the past asked service providers to take down some political activist material.

Given the free speech implications and the gravity of the offence - serious enough to involve the Serious Organised Crime Agency - I can't see any issue with asking a court to authorise any such seizure and give clarity to hosting providers handling the demand.

Prejudicial statements

There is an ongoing police investigation so I don't want to say too much about the way RnBXclusive operated - ie whether it hosted alleged infringing content or merely linked to alleged infringing content.

But the police statement yesterday that "the individuals behind this website have been arrested for fraud" is interesting.  As I mentioned above, criminal sanctions are available under the Copyright, Designs and Patents Act for people distributing copyrighted content without authorisation.

Now, given any fraud prosecution under the Fraud Act 2006 must prove that a false representation is made in an attempt to gain (or cause a loss to others) (S.2) of money or property (S.5) I question the wisdom of the following statement issued by SOCA yesterday:
‘Much of the music offered for download by RnBXclusive was illegally obtained from artists, leading the industry to attribute losses of approximately £15million per year to this activity.’
The site operators remain innocent until proven guilty, yet here we have the arresting police force stating as fact that the music was illegally obtained from artists.  Not only that, but potential future jurors are told the size of the monetary loss to artists, thereby helping prove the prosecution's case for a conviction under the Fraud Act.


@JamesFirth

2 comments:

  1. Small point - its not the Fraud Act - its common law fraud. LE.

    ReplyDelete
  2. Quite right, thanks. The AG issued guidance on common law fraud in the light of the Fraud Act 2006. S.15 is relevant, and AFAIK gain or loss is still relevant.

    AG Guidance

    ReplyDelete

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