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You CAN'T jail online pirates for 10 years, legal eagles tell UK govt

Public consultation earns plans an unstintingly scathing attack from lawyers

The UK government plan to jail online copyright pirates for up to 10 years has been attacked by legal boffins in a public consultation that ended yesterday.

The British and Irish Law, Education and Technology Association (BILETA), said the idea was “unacceptable, infeasible and unaffordable”.

The public consultation invited anyone with an axe to grind to submit their response to the question: Should the maximum custodial sentence available for online and offline copyright infringement of equal seriousness be harmonised at 10 years?

BILETA’s response said: “There is no need to change the existing law [because] legitimate means to tackle large-scale commercial online copyright infringement are not only already available, but also currently being used.”

In March, the UK Intellectual Property Office (IPO) commissioned a study to establish whether a decade behind bars would be a suitable deterrent for online pirates. The research was carried out by Martin Brassell and Ian Goodyer and pointed out that while physical copyright offences carry a maximum 10-year penalty, online infringers can only be sentenced for up to two years.

This led Mike Weatherley MP, IP adviser to the prime minister, to conclude that the “disparity in sentencing between online and offline crime... sends out all the wrong messages. Until this is changed, online crime will be seen as less significant than traditional theft.”

His view was ratcheted up further in the 12-page public consultation document: “There is no doubt that copyright infringement is serious and there is no strong case for treating online infringement any differently to physical infringement. The government believes that this change will send a clear message to rights holders and criminals that copyright infringement online will not be tolerated. This is furthermore supported by the Conservative manifesto commitment that sentencing should reflect the seriousness of the crime.”

But the legal eagles from BILETA say the government cannot afford to up the jail time: “The system has been overcrowded every year since 1994. Whilst the capacity has been increased, there is a continuing rise in the number of people being held in prison which continues to outstrip the number of places available.”

It further says that the plans face a massive problem in even identifying those responsible for criminal copyright infringement: “In addition to difficulties relating to jurisdiction there are practical issues when seeking to identify those who run and own large websites or services which facilitate copyright infringement on a criminal scale. To begin with, the registration procedures for websites are not sufficiently verified.”

Although ICANN delegates top level domains, the BILETA opinion pointed out that many individuals opt out of displaying all their contact details, and criminals could always use a proxy company. The consultation response also said that the commercial WHOIS database is notoriously unreliable, with some surveys showing only 46 per cent of the information is accurate.

“Ultimately there are many shortcomings in being able to obtain information about who owns a particular domain,” says the report, raising the spectre of innocent parties being found guilty of infringement. Although it does suggest ways this might be tackled, the report nonetheless concludes that it is simply not feasible.

Even the March IPO report says cases are not taken to court due to a lack of confidence in the prospect of a successful conviction,because of an absence of case law and lack of perceived seriousness in online offences. It also notes that taking down offending websites “may not lead to permanent removal, as proxy sites are prone to appear soon afterwards”.

Of course, this may all be redundant as the European Commission is due to propose a new copyright law that could supersede the old UK law. BILETA goes further, saying that such a change in the law would have to be compatible with the right to freedom of expression included in Article 10 of the European Convention on Human Rights – and they are firmly of the opinion that it would not. ®

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