Monday 9 April 2012

Dire traits – a curious case of copyright extradition

In an English copyright extradition case last year (Sitek v Swidnica Circuit Court, Poland [2011] EWHC 1378 (Admin)), the court’s decision to permit the appellant’s extradition to Poland turned on the assertion in a European Arrest Warrant that various audio and music files had “the traits of illegal copying”.   Mr Justice Lloyd Jones ordered extradition for those items, but refused it for games and software in respect of which the warrant made no similar assertion.   

Under our minimalist European extradition procedures, the prosecution were not required to state what the alleged traits consisted of, let alone provide supporting evidence.  Troublingly, it was sufficient for the warrant to make a bare formulaic assertion at a level of generality free of any concrete detail. 
Why did the alleged traits make the difference between extradition or not?  This brings into focus another significant aspect of the case.  The defendant Sitek was charged in Poland with copyright offences based on his acquisition of the computer games, software, audio and music files.  To qualify for extradition the prosecution had to show that the conduct alleged in the warrant would amount to an offence in England.  It was not suggested that the offence fell within the list of 32 EAW offences for which dual criminality is abolished. 
However the prosecution did not argue that the conduct alleged against Sitek would have constituted a copyright offence in England.  Clearly it would not have done, since the allegation was of mere acquisition and possession.   Instead, they relied on the Proceeds of Crime Act 2002.  This makes it a criminal offence to acquire or possess criminal property.  Property is criminal property if it constitutes a person's benefit from criminal conduct or represents such a benefit, and the alleged offender knows or suspects that it constitutes or represents such a benefit.
So the prosecution had to show that if the alleged conduct had occurred in the UK, then:
(a)  Someone up the distribution chain would have committed a criminal offence

(b)  The copies alleged to be in Sitek’s possession would have constituted or represented someone’s benefit from such criminal offence; and

(c)   Sitek would have known or suspected that to be the case.
As to (a) the judge held that it could be inferred from the allegations in the EAW that someone up the chain had either made the copies for sale or hire, or distributed the copies in the course of a business or otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright.  The judge drew attention to the value placed on the items in the description of the offences: “while not on a massive scale, these are, with the exception of Offence 4, not insubstantial quantities of infringing articles”.   
The loss caused to distributors by the audio and music files on which Sitek was ultimately ordered to be extradited was alleged to be as follows: p2p  audio files recorded into MP3: PLN 1,804; audio files with the repertoire of Polish and foreign music: PLN 407.97.  At the exchange rate prevailing at the time of the alleged offences, the total alleged loss to distributors on those items was about £370 (PLN 2,212).
The items on which Sitek was not extradited were alleged to have caused losses of PLN9,482.
The judge also held that it could be inferred that the person dealing up the chain knew or had reason to believe that the article was an infringing copy, since each of the descriptions in the warrant alleged that the appellant "should and could have assumed" in the circumstances that it had been obtained by means of a prohibited act in contravention of licence. Thus the same should and could have been equally obvious to any other person dealing in the items.   There was therefore sufficient basis to infer that someone up the chain would have committed a criminal copyright offence.
As to (b) the judge held that mere possession of the items by a person prior to the acquisition by the appellant would be sufficient to constitute a benefit.
As to (c), the prosecution had to show that Sitek would have had not just objective grounds on which he ought to have assumed that the items were infringing, but would in fact have known or suspected that to be the case.  The allegation that he “should and could have assumed” in the circumstances that the items were infringing fell short of alleging subjective knowledge or suspicion.  The case of dual criminality in relation to computer games and software therefore failed. 
However, the allegations in relation to the audio and music files contained the additional assertion that they had “the traits of illegal copying”.  This was enough to tip the balance and enable the judge to infer subjective knowledge or suspicion:
“While no further particulars of these allegations are provided, these are to my mind statements of primary fact from which conclusions may be drawn, albeit stated once again at a level of considerable generality. I consider that this description of the files is a matter which is capable of sustaining the necessary finding of knowledge or suspicion for the purpose of the relevant Offence in English law, in particular when considered in conjunction with the other more general allegations contained in all four statements of Offence.”
The Sitek case illustrates both the minimal level of detail which is required to be included in an EAW and the extent that the courts can make inferences based on quite general allegations. 
It also demonstrates that dual criminality in a copyright case may be based not just on a corresponding copyright offence, but on a catch-all statute such as the Proceeds of Crime Act 2002.  This can render conduct criminal (such as in this case mere possession) which is not an offence under the copyright legislation itself.

Sunday 8 April 2012

Council of Europe search and social media recommendations - political agendas dressed up as human rights

When human rights become just another vehicle for channelling the political agendas of the hour, you suspect that something has gone wrong.  When a group of government ministers issues, under the human rights banner, a shopping list of pet policies designed to drive government intervention - then you know it.

The recent Council of Europe “Recommendation of the Committeeof Ministers to member States on the protection of human rights with regard to search engines” and its twin Recommendation for social media platforms are just such documents. 

You might think that a human rights evaluation of search engines and social media would be primarily devoted to securing the rights of users to receive information free of government censorship and snooping.  For all the latter-day emphasis on horizontal rights between individuals, the primary role of human rights is and always will be to protect individuals from the excesses of the State.

But no, after a ritual nod in paragraph 2 to the importance of search engines in promoting freedom of expression, the game is given away in the third paragraph of the search engine Recommendation:
“Suitable regulatory frameworks, compliant with human rights requirements, should be able to give adequate responses to legitimate concerns in relation to referencing by search engines of content created by others. Further consideration is necessary as to the extent and the modalities of application of national legislation, including on copyright, to search engines as well as related legal remedies.”
So it seems this document is not going to be about securing the position of search engines as engines of free expression and the dissemination of knowledge, but about heaping as much regulation on them (to the benefit of other concentrated interests) as Ministers think they can get away with while remaining nominally human rights-compliant.
And so, in the main, it proves.  The ground is laid in paragraph 2, where the Committee of Ministers “considers it essential that search engines be allowed to freely crawl and index the information that is openly available on the Web and intended for mass outreach”.  This carefully worded sentence makes no mention of users having unimpeded access to the index. Crawling and indexing do little for the freedom of expression of users unless they can access search results.
When we move on to the meat of the recommendation it becomes clear that the omission is deliberate.  The document includes not just a list of recommended interferences with search engines’ freedom to operate their businesses (disclosure of information about search result methodologies, various requirements in the name of protecting personal data and ensuring accessibility to people with disabilities, member States apparently encouraged to offer public service search engines), but also of impediments to user access: non-indexing or de-ranking of content "not intended for mass communication (or for mass communication in aggregate)".
Even the single recommendation that might go some way to promoting freedom of expression is cast as a potential regulatory intervention:  that member States should encourage search engine providers to discard search engine results only in accordance with ECHR Art 10(2) and that users should be informed as to the origin of the request to discard the results, subject to respect for private life and protection of personal data.
One wonders whether a committee of Ministers would even have thought of this if search engines such as Google hadn’t already been doing it, in conjunction with websites such as Chilling Effects.  Anyway being informed of the origin of the request is a poor second to seeing a result that should never have been removed in the first place.
Restricting government access to user information is addressed weakly, in a way that (astonishingly for a human rights document) puts private and government access to personal data on an equal footing:  “ensure that suitable legal safeguards are in place when access to users’ personal data is granted to any public or private entity…”.
While a detailed appendix to the Recommendation pays greater attention to freedom of expression, for instance in its treatment of filtering and de-indexing and of access to data by governments, it also contains more specifics about what the Ministers expect search engines to be asked to do.  
The social media Recommendation follows a similar structure, stripped of the specifics about search results but with many additional recommendations about protecting users from harm and treatment of personal data.  However the appendix to the social media Recommendation looks much more like a detailed manual for implementation of the main recommendations than does that for search engines.
We are accustomed to reading politically driven policy agendas in documents emanating from the European Commission. What is so difficult about these documents is that they purport to be human rights recommendations, published under the auspices of the Council of Europe.
If human rights are now so debased and diluted that political agendas like these can be dressed up in the clothes of human rights, then human rights are in danger of losing their real value. 
That is perhaps not surprising, human rights having been diluted and eroded from all corners of the political compass.  What are in reality claims on others channelled via the coercive agency of the state are added to the list of rights; ever-increasing horizontality detracts from the significance of rights as protection against the state; and the specious assertion that rights and freedoms must be exercised responsibly ignores the fact that those who disagree with us will always seek to paint our actions as irresponsible. 
Still, perhaps we should expect little better when we charge a Committee of Ministers with responsibility for human rights.  We can hardly expect a bunch of politicians, even when wearing human rights hats, to do anything other than act politically.