In English law there's a case called Thornton v Shoe Lane Parking that sort of says you can't impose contractual terms after you've entered into the contract; i.e. by using this site you agree to terms you can't read until you use the site.
Secondly, the UK (via the EU) has all sorts of consumer-protection laws which, among other things, can negate unreasonable terms in contracts - particularly where the contract is one-sided.
Plus you have the broader issues of incorporation of the terms; if they're buried away on some "terms" page, are they actually incorporated into the agreement?
So legally, under English law (where this site is based) there's a good chance the term isn't binding.
No, this is Vince Cable over in dBIS, rather than Vaizey at DCMS. Vaizey hasn't been doing all that much with copyright stuff recently due to the phone-hacking stuff and now the Olympics.
My impression is that this proposed power is more about implementing the Hargreaves Review recommendations and so introducing *new* defences rather then removing existing ones. However, the problem with major changes being done by secondary legislation is that we won't know what this power will be used for until it is used.
Either way, though, it is constitutionally a bit dubious for the Government to be giving itself the power to make major changes to criminal law with only cursory approval by Parliament
$4m for a first instance decision? And I thought legal costs in the UK were high. Come on, people, this is getting downright silly; whatever happened to justice being fair, blind, accessible and all those things?
Also, $2.9m of that is apparently "Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." - That's one expensive photocopier they've got there.
... no, they're design rights. Either registered, unregistered or community (in England). They work differently, require different registration, cover different things, last (in some cases) different durations and come from different bits of law.
Patents cover processes, design rights cover shapes (and designs), copyright covers expressions of ideas, trademarks cover brands, performance rights cover performances, and so on. They are all subtly (or not so subtly, in some cases) different.
Saying design rights are patents on designs seems like saying a physical right of access is like a patent on a footpath... also, I'm fairly certain I'm not your son.
This wasn't actually a patent dispute (unlike last week's HTC v Apple case). While it may seem like a trivial difference, this was a "(European) community design right" dispute. That means it was about the actual design and the way it looked, rather than anything to do with how it works, hence coolness being an important factor.
The [iPad] looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design. ... [The Samsung tablets] do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool. The overall impression produced is different.
So Apple doesn't have a complete monopoly on rectangular hand-held computers with rounded corners - just cool ones.
Unfortunately, the UK Home Office can and probably will ignore its citizens...
Haven't you heard the latest CCDP/Comms Data proposals? The Home Office wants to pay very close attention to all its citizens, and everyone else in the country, and find out precisely what they're saying and who they're talking to.
Unfortunately, they're doing this to make it easier to go after people they don't like, rather than to find out what they should be doing.
The Open Rights Group is reporting that they're already seeing phising emails pretending to be sent under the DEA. Obviously it is full of holes, but might work against an unsuspecting person, not entirely familiar with the DEA or the law in general.
Re: Does anybody else suspect these 'anonymous' courtroom notes were in fact taken by Vickerman
It's possible this could be fabricated, but a lot of the facts are "public record", particularly the stuff about the FACT/MPAA investigation, and the FACT person who was present at the initial arrest and had access to evidence. That was all discussed in an earlier case covering this situation.
Secondly, if this was an attempt to discredit a witness, one would expect it to have been published *before* the trial (even if that would be contempt of court). Of course, as discussed elsewhere, it would be helpful to get a transcript of the trial (assuming all copies haven't mysteriously disappeared) - otherwise we'll just have to wait for the appeal.
... the guy was being threatened with indefinite detention in a "sexual correction" facility, even if he was acquitted. The judges wanted to extradite him, but felt they couldn't unless the US gave assurances that he wouldn't be sent on this program, as it would amount to a flagrant breach of Article 5 ECHR (the one that says you can't be locked up without charge or trial). The US refused to give such assurances.
The only reason it got as far as it did was that the USians seem to have misled the trial judge about the program - something the appeal court wasn't too happy about. Obviously this isn't the case elsewhere, but in the UK we do not let the state (or other states) lock people up indefinitely without trial - the Home Secretary was recently held in contempt of court for holding someone in prison slightly longer than they were supposed to be there - our courts take this sort of thing very seriously.
Sadly, the Daily Mail saw "paedophile" and "human rights" and so launched a crusade. They also tried to work in the "one-sided extradition act" thing, despite this actually representing the other side; i.e. refusal to extradite. The really depressing thing is the "worst voted" comment on that article... which makes a perfectly reasonable and valid point.
As for him being married to an MoJ employee, the MoJ is the political/executive part of the justice system, not the judicial. The executive/government approved the extradition, it was the judges who refused it (based on, you know, evidence, law and rational arguments, rather than doing what was politically convenient). All having an MoJ wife suggests is that he might have had access to good lawyers/legal advice.
Conspiracy to defraud isn't actually a conspiracy to commit a fraud, it is its own special, stand-alone offence.
But yes, it requires "an agreement between two or more people" - given that Mrs Vickerman was acquitted, I'm guessing she wasn't the other party - possibly the "star witness" who built their site, but more likely the users of the website. Probably on the grounds that there was an implied agreement to infringement copyright or something vague like that.
Either way, they don't actually have to go after the other people in the alleged conspiracy - there are cases where they haven't due to the other parties being either whistle-blowers or undercover law enforcement (as in the recent Tappin extradition case).
I'm wondering how long that blog will last, before FACT, the MPAA or even the judge order its takedown on defamation grounds. Or just go straight to the police via contempt of court or something similar.
Assuming this is all true, the judge is right about one thing. If he got the law wrong (which he may have done), it is for a higher court to sort it out (no matter how much that would cost). I'm not an expert on this sort of thing, but it looks like there are pretty solid grounds for an appeal in there, if some of that is true.
On top of that, it does look like some serious questions should be asked about FACT/the MPAA's activities; arguably there's at least one fraud by false representation in there, aside from all the issues with the evidence. Unfortunately, given the supposed close ties between the police and FACT, it is unlikely the police will bother investigating.
[Cases like this remind me why I'm spending large chunks of time and money to become a lawyer.]
I for one am glad that this guy got 10 years in jail.
10 years is the maximum he could get - he won't be sentenced until the end of July. Given the incredibly broad scope of the offence (conspiracy to defraud) and the fact that the maximum sentence he would have faced had they actually used copyright infringement is 2 years, he will probably get significantly less than 10 years.
Not that this makes it right. Conspiracy to defraud is a very bad law - even the Home Office admitted it was "arguably unfairly uncertain" after the Law Commission told them to repeal it a while back. It really needs to die.
Hopefully, though, he will appeal and we'll get a nice Court of Appeal case laying out the law on linking, hosting etc. (if we don't get that from the O'Dwyer extradition appeal first).
Actually, that, if true (which it isn't - slavery is illegal in every country in the world, if nothing else, by Article 4 of the UDHR) would support my argument.
So, first we have your starting post, which you end by stating:
Fact is, copyright is the law. Deal with it.
I may be misinterpreting you, but you seem to be suggesting that opposing, criticising or calling for the reform of copyright and copyright enforcement is bad because it "is the law".
This point here being that just because something is in the law, doesn't mean it is right. Unfortunately, as you pointed out, segregation is a fairly bad example - not least because there are various different types, and in some places it was never legal (apparently, in the UK, the last segregation that was legal was segregating English and Irish people in the 14th century).
So, you pointed out some of the reasons why this was a bad example here:
Yeah, 'cause recognizing someone's property right in a work that costs time and money to create is the same thing as segregation. Perhaps you haven't noticed, but pretty much every nation on earth has copyright laws.
There seem to be two points here; one that copyright is better than segregation because it involves giving people a property right, which is needed due to the time and money invested (which isn't quite true for copyright in many places, as it covers everything from major feature films to doodles). The second being that every nation on earth has copyright laws (which is mostly true, thanks to WIPO and the UN forcing the Berne Convention on everyone).
So, my response was to point out a better analogy: Slavery. Slavery involves giving people a property right (over their slaves), and recognises the time and money that goes into capturing and training a slave. Similarly, at some point or another, seems to have been legal in most countries (although there's some debate as to whether or not it was ever technically legal in the UK).
Thus, your arguments supporting the current copyright regime (and opposing criticism etc. of it) are arguably flawed as precisely the same arguments could have been used to oppose the abolition of slavery.
That said, slavery, while illegal everywhere in the world, is rampant, with more people being held in slavery than ever before. Perhaps we should legalise it again - creating a new property right, to reward slavers for their hard work? I imagine you could find a BASCAP-style study to say that it will generate $bns in new revenue, create hundreds of thousands of jobs, and save us from recession.
[Ah, nothing like troll-feeding to start the day...]
Re: Re: Re: Re: Re: Outrageous. That's what this is.
"Conspiracy to defraud" requires an "agreement between 2 or more people to dishonestly deprive" someone of something they have, might have, or might have had, or to injury a proprietary right.
It's an evil, vague, broad law. It also can cover situations where you agree to do something when doing that thing would be perfectly legal. Various people (including the UK Law Commission) have recommended abolishing it, but while the government accepted it was bad when rewriting UK Fraud law, they decided to leave it there "just in case".
Copyright law is worldwide, Einstein. Has been for HUNDREDS of years. It is impossible to take you morons seriously when you purposely bury your head in the sand about that.
Not quite true. While the Berne Convention came into force near the end of 1887, (only 125 years, not really "hundreds" of years ago), and was an attempt to get international copyrights recognised, the US didn't fully ratify it until 1989; barely 23 years ago.
Law is never worldwide. Law is jurisdiction-specific. So if the US want to extradite someone from England or Wales, they need an England+Wales law to do it. The current relevant law says that the conduct must be a sufficiently serious crime (fairly complex definition) in England+Wales.
While in the extradition hearing the judge relied on s107(2A) CDPA (which is a copyright law), that law has never been successfully applied in this circumstance, and never been challenged in a higher court - so the judge is using his best guess as to what it means. He may be wrong, which is why the case is being appealed.
However, the case referenced in the original post didn't involve copyright law at all, the offence claimed was the odd "conspiracy to defraud"; so your issue with copyright being around for hundreds of years isn't relevant.
As for "a mega-corporation like Google ... exploiting artists", if you're a regular TechDirt reader you will no doubt be familiar with the numerous examples of "media" companies such as film studios doing just that - exploiting artists. As it happens (beware, facts incoming), the parent companies of the 6 Hollywood studios making up the bulk of the MPAA/FACT have something like $550bn in assets, compared with Google's $73bn. Relatively, Google isn't all that "mega".
That said, I don't find the term "pirate" at all derogatory. I'm quite proud of being a Pirate and do most of my work under that banner.
How about slavery? Someone's property right in a slave that costs time and money to acquire, train and educate. At some point or other most nations had laws allowing slavery. That better for you?
Actually they were given access to the evidence in the first place, took some of it away for analysis, and then were given all the evidence once the English prosecutors decided not to press charges.
The couple involved sued the police and FACT to get their stuff (documents and computer equipment) back, but while a lower court sided with them, the Court of Appeal said it was perfectly fine for them to have all the evidence in case they wanted to bring a private prosecution. Now, some 2-3 years later, they finally have. Evidence laws seem to be rather different in the UK.
I say let the content industry bully. All their actions are doing is creating resentment and alienating a sizable chunk of the population.
That's a nice sentiment, but doesn't really help Richard O'Dwyer, who is living with the constant threat of extradition, or the guy now facing prison time for running a website, or the thousands of people across the UK who are about to receive letters demanding money for allegedly file-sharing, or those in France or the US, about to lose their internet connections for the same, and so on. There comes a point where standing idly by in the hopes that some politicians will fix it all, is no longer enough.
...a nearly identical site was already found legal in the UK
While that case was one of many, the MPAA/FACT's losing streak seems to have come to an end today; TorrentFreak are reporting that another site owner was found guilty of conspiracy to defraud for running a linking site. Conspiracy to defraud is one of the most controversial offences in English law (among criminal law academics, at least) due to it being "excessively broad" and vague, and for criminalising an agreement to do something that could be perfectly legal otherwise.
There doesn't seem to have been any attempt to get him for copyright infringement, as that has much higher requirements. It may be that he is able to appeal the decision, but I'm not sure on what grounds; "this law is just wrong" probably won't go down well with the courts.
So, given this success, expect to see many more of these sorts of arrests, show trials and general bullying from the MPAA/FACT in the UK, unless or until a higher court finally gets around to sorting out this area of law (hopefully in O'Dwyer's extradition appeal next month).
... Or even a lot of the stuff covered by the 1961 Rome Convention. Performers' rights, and moral rights are nothing new in Europe; they come from the civil law tradition of copyright being about protecting creators (moral rights are non-transferable usually), rather than the Anglo-American idea of letting publishers make money. You can decide amongst yourself which idea is better.
From what I can tell, these things were included in the original Copyright, Designs and Patents Act 1988, so nothing particularly new here, although there are issues of WIPO once again hard-coding this sort of thing in international treaties - making it that much harder to remove them later.
On the post: Olympic Level Ridiculousness: You Can't Link To The Olympics Website If You Say Something Mean About Them
Re:
Secondly, the UK (via the EU) has all sorts of consumer-protection laws which, among other things, can negate unreasonable terms in contracts - particularly where the contract is one-sided.
Plus you have the broader issues of incorporation of the terms; if they're buried away on some "terms" page, are they actually incorporated into the agreement?
So legally, under English law (where this site is based) there's a good chance the term isn't binding.
On the post: UK Government Wants To Give Itself Power To Change Copyright Law Without Full Parliamentary Scrutiny
Re:
My impression is that this proposed power is more about implementing the Hargreaves Review recommendations and so introducing *new* defences rather then removing existing ones. However, the problem with major changes being done by secondary legislation is that we won't know what this power will be used for until it is used.
Either way, though, it is constitutionally a bit dubious for the Government to be giving itself the power to make major changes to criminal law with only cursory approval by Parliament
On the post: Google Asks For $4 Million In Legal Fees From Oracle
Only 4 million...
Also, $2.9m of that is apparently "Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." - That's one expensive photocopier they've got there.
On the post: UK Judge: Samsung Wins Over Apple In Patent Dispute Because Its Tablet Isn't As Cool As iPad
Re: Re: Not a Patent dispute!
Patents cover processes, design rights cover shapes (and designs), copyright covers expressions of ideas, trademarks cover brands, performance rights cover performances, and so on. They are all subtly (or not so subtly, in some cases) different.
Saying design rights are patents on designs seems like saying a physical right of access is like a patent on a footpath... also, I'm fairly certain I'm not your son.
On the post: UK Judge: Samsung Wins Over Apple In Patent Dispute Because Its Tablet Isn't As Cool As iPad
Not a Patent dispute!
The judgment can be found here, for anyone interested: Samsung Electronics (UK) Ltd v Apple Inc [2012] EWHC 1882 (Pat), the relevant paragraphs being 182 and 190: So Apple doesn't have a complete monopoly on rectangular hand-held computers with rounded corners - just cool ones.
On the post: Poll Shows Only 9% Of UK Public Think Richard O'Dwyer Should Be Extradited
Re: Ignore the Citizens!
Haven't you heard the latest CCDP/Comms Data proposals? The Home Office wants to pay very close attention to all its citizens, and everyone else in the country, and find out precisely what they're saying and who they're talking to.
Unfortunately, they're doing this to make it easier to go after people they don't like, rather than to find out what they should be doing.
On the post: UK's 3-Strikes Plan Continues To Grind Through The System; Still Not In Force, Still Awful
Phishing letters
On the post: Anonymous Courtroom Notes Raise Serious Questions About SurfTheChannel Conviction
Re: Does anybody else suspect these 'anonymous' courtroom notes were in fact taken by Vickerman
Secondly, if this was an attempt to discredit a witness, one would expect it to have been published *before* the trial (even if that would be contempt of court). Of course, as discussed elsewhere, it would be helpful to get a transcript of the trial (assuming all copies haven't mysteriously disappeared) - otherwise we'll just have to wait for the appeal.
On the post: Anonymous Courtroom Notes Raise Serious Questions About SurfTheChannel Conviction
Entirely off topic, but...
The only reason it got as far as it did was that the USians seem to have misled the trial judge about the program - something the appeal court wasn't too happy about. Obviously this isn't the case elsewhere, but in the UK we do not let the state (or other states) lock people up indefinitely without trial - the Home Secretary was recently held in contempt of court for holding someone in prison slightly longer than they were supposed to be there - our courts take this sort of thing very seriously.
Sadly, the Daily Mail saw "paedophile" and "human rights" and so launched a crusade. They also tried to work in the "one-sided extradition act" thing, despite this actually representing the other side; i.e. refusal to extradite. The really depressing thing is the "worst voted" comment on that article... which makes a perfectly reasonable and valid point.
As for him being married to an MoJ employee, the MoJ is the political/executive part of the justice system, not the judicial. The executive/government approved the extradition, it was the judges who refused it (based on, you know, evidence, law and rational arguments, rather than doing what was politically convenient). All having an MoJ wife suggests is that he might have had access to good lawyers/legal advice.
On the post: Anonymous Courtroom Notes Raise Serious Questions About SurfTheChannel Conviction
Re: Weird question
But yes, it requires "an agreement between two or more people" - given that Mrs Vickerman was acquitted, I'm guessing she wasn't the other party - possibly the "star witness" who built their site, but more likely the users of the website. Probably on the grounds that there was an implied agreement to infringement copyright or something vague like that.
Either way, they don't actually have to go after the other people in the alleged conspiracy - there are cases where they haven't due to the other parties being either whistle-blowers or undercover law enforcement (as in the recent Tappin extradition case).
On the post: Anonymous Courtroom Notes Raise Serious Questions About SurfTheChannel Conviction
How long will that blog last?
Assuming this is all true, the judge is right about one thing. If he got the law wrong (which he may have done), it is for a higher court to sort it out (no matter how much that would cost). I'm not an expert on this sort of thing, but it looks like there are pretty solid grounds for an appeal in there, if some of that is true.
On top of that, it does look like some serious questions should be asked about FACT/the MPAA's activities; arguably there's at least one fraud by false representation in there, aside from all the issues with the evidence. Unfortunately, given the supposed close ties between the police and FACT, it is unlikely the police will bother investigating.
[Cases like this remind me why I'm spending large chunks of time and money to become a lawyer.]
On the post: Exceptionally Troubling Ruling In The UK: Owners Of Links Site Guilty Of 'Conspiracy To Defraud'
Re: This guy is a menace to society
Not that this makes it right. Conspiracy to defraud is a very bad law - even the Home Office admitted it was "arguably unfairly uncertain" after the Law Commission told them to repeal it a while back. It really needs to die.
Hopefully, though, he will appeal and we'll get a nice Court of Appeal case laying out the law on linking, hosting etc. (if we don't get that from the O'Dwyer extradition appeal first).
On the post: UK Politician Speaks Out Against The Travesty Of Trying To Deport Richard O'Dwyer To Feed Hollywood's Anger
So, first we have your starting post, which you end by stating: I may be misinterpreting you, but you seem to be suggesting that opposing, criticising or calling for the reform of copyright and copyright enforcement is bad because it "is the law".
Then we have the response: This point here being that just because something is in the law, doesn't mean it is right. Unfortunately, as you pointed out, segregation is a fairly bad example - not least because there are various different types, and in some places it was never legal (apparently, in the UK, the last segregation that was legal was segregating English and Irish people in the 14th century).
So, you pointed out some of the reasons why this was a bad example here: There seem to be two points here; one that copyright is better than segregation because it involves giving people a property right, which is needed due to the time and money invested (which isn't quite true for copyright in many places, as it covers everything from major feature films to doodles). The second being that every nation on earth has copyright laws (which is mostly true, thanks to WIPO and the UN forcing the Berne Convention on everyone).
So, my response was to point out a better analogy: Slavery. Slavery involves giving people a property right (over their slaves), and recognises the time and money that goes into capturing and training a slave. Similarly, at some point or another, seems to have been legal in most countries (although there's some debate as to whether or not it was ever technically legal in the UK).
Thus, your arguments supporting the current copyright regime (and opposing criticism etc. of it) are arguably flawed as precisely the same arguments could have been used to oppose the abolition of slavery.
That said, slavery, while illegal everywhere in the world, is rampant, with more people being held in slavery than ever before. Perhaps we should legalise it again - creating a new property right, to reward slavers for their hard work? I imagine you could find a BASCAP-style study to say that it will generate $bns in new revenue, create hundreds of thousands of jobs, and save us from recession.
[Ah, nothing like troll-feeding to start the day...]
On the post: UK Politician Speaks Out Against The Travesty Of Trying To Deport Richard O'Dwyer To Feed Hollywood's Anger
Re: Re: Re: Re: Re: Outrageous. That's what this is.
It's an evil, vague, broad law. It also can cover situations where you agree to do something when doing that thing would be perfectly legal. Various people (including the UK Law Commission) have recommended abolishing it, but while the government accepted it was bad when rewriting UK Fraud law, they decided to leave it there "just in case".
On the post: UK Politician Speaks Out Against The Travesty Of Trying To Deport Richard O'Dwyer To Feed Hollywood's Anger
Re: Re: Outrageous. That's what this is.
Law is never worldwide. Law is jurisdiction-specific. So if the US want to extradite someone from England or Wales, they need an England+Wales law to do it. The current relevant law says that the conduct must be a sufficiently serious crime (fairly complex definition) in England+Wales.
While in the extradition hearing the judge relied on s107(2A) CDPA (which is a copyright law), that law has never been successfully applied in this circumstance, and never been challenged in a higher court - so the judge is using his best guess as to what it means. He may be wrong, which is why the case is being appealed.
However, the case referenced in the original post didn't involve copyright law at all, the offence claimed was the odd "conspiracy to defraud"; so your issue with copyright being around for hundreds of years isn't relevant.
As for "a mega-corporation like Google ... exploiting artists", if you're a regular TechDirt reader you will no doubt be familiar with the numerous examples of "media" companies such as film studios doing just that - exploiting artists. As it happens (beware, facts incoming), the parent companies of the 6 Hollywood studios making up the bulk of the MPAA/FACT have something like $550bn in assets, compared with Google's $73bn. Relatively, Google isn't all that "mega".
That said, I don't find the term "pirate" at all derogatory. I'm quite proud of being a Pirate and do most of my work under that banner.
On the post: UK Politician Speaks Out Against The Travesty Of Trying To Deport Richard O'Dwyer To Feed Hollywood's Anger
Re: Re: Re:
On the post: UK Politician Speaks Out Against The Travesty Of Trying To Deport Richard O'Dwyer To Feed Hollywood's Anger
Re: Re: Outrageous. That's what this is.
The couple involved sued the police and FACT to get their stuff (documents and computer equipment) back, but while a lower court sided with them, the Court of Appeal said it was perfectly fine for them to have all the evidence in case they wanted to bring a private prosecution. Now, some 2-3 years later, they finally have. Evidence laws seem to be rather different in the UK.
On the post: UK Politician Speaks Out Against The Travesty Of Trying To Deport Richard O'Dwyer To Feed Hollywood's Anger
Re: Re: Another victory for Hollywood
On the post: UK Politician Speaks Out Against The Travesty Of Trying To Deport Richard O'Dwyer To Feed Hollywood's Anger
Another victory for Hollywood
There doesn't seem to have been any attempt to get him for copyright infringement, as that has much higher requirements. It may be that he is able to appeal the decision, but I'm not sure on what grounds; "this law is just wrong" probably won't go down well with the courts.
So, given this success, expect to see many more of these sorts of arrests, show trials and general bullying from the MPAA/FACT in the UK, unless or until a higher court finally gets around to sorting out this area of law (hopefully in O'Dwyer's extradition appeal next month).
On the post: WIPO Is Quietly Signing An Agreement To Give Hollywood Stars Their Own Special Version Of Copyright
Re: Neighbouring rights
From what I can tell, these things were included in the original Copyright, Designs and Patents Act 1988, so nothing particularly new here, although there are issues of WIPO once again hard-coding this sort of thing in international treaties - making it that much harder to remove them later.
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