Online Piracy and Kim Dot Com
Copyright is very basically the right to stop somebody else copying another person`s creative work. It is an exclusive right which belongs only to the owner of the creative work. The term `piracy`, as it applies to copyright infringement, is a colloquialism that was used historically to describe copyright infringement. The person stealing the creative work belonging to another was termed a `pirate`. Therefore the stealing on the internet of copyright work that belongs to another is colloquially known as `Online Piracy`. Copyright infringement is the same thing as `Online Piracy`; it’s just the formal way to describe the theft of another person`s creative work.
The concept of civil law is very basically a set of rules that allow people to resolve disputes between themselves peacefully.
These are rules that govern public matters. The obligation is to protect the public. Copyright Infringement is quasi criminal because it is classed as a crime against the public.
TV Shack, Megaupload and Kim Dotcom
Megaupload.com and Kim Dotcom can definitely be accused of alleged online piracy. This is because the law in most of the industrialised nations of the world state that: both the person that makes copies of copyright protected creative work without permission and anyone that assists them to copy copyright protected work without permission, has committed a violation of the copyright of the person who actually owns the creative work.
This means that if (X) file shares creative work, subject to copyright, using the Megaupload.com website, then both Megaupload.com and (X) have potentially committed a criminal offence and can be arrested. The same secondary infringement rule applies where a website links to other sites where copyright infringing material was available, as is allegedly reported to be the case with TV Shack.
The best example to use to explain the position is the Napster case back in 1999. Like Megaupload.com, Napster also operated file sharing technology. A&M records and 17 other companies filed a complaint for contributory infringement against Napster. They were successful in shutting Napster down as it then was.
Napster operates today as one of several legitimate digital download web sites but it is the product of US record labels and not the same company it was back in 1999. Napster was recently acquired by Rhapsody.com, another legitimate digital streaming and download service. Nobody at Napster went to jail. But the mood against so called `online piracy` has shifted dramatically to a war-like stance.
You cannot have a legal article without the technical part so here goes.
Global Copyright Law
The WIPO (World intellectual property organization) Copyright Treaty (WCT) 1996. Article 14 states that contracting parties shall ensure that enforcement procedures are available to stop and deter copyright infringement.
Article 61 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal sanctions for `online piracy`. UK and US and most other industrial nations are signatories.
The European Convention on Cybercrime 2004 (the Seminal Law on the Criminal Aspect of Cyberlaw)
– The only binding international treaty on the criminal aspect of online piracy to date.
– Has not yet been ratified by several countries. Still open for signature.
– Signed by 47 countries in Europe (not all are EU members).
– Signed by the United States who were given observer status.
– Article 10 deals with `online piracy`.
– Article 13 requires criminal sanctions including prison sentences for wilfully committing `online piracy`.
Article 22 – Jurisdiction establishes that member countries must enact laws enabling them to have jurisdiction over `online piracy` if it should occur in the member country’s territory or be committed by one of its nationals.
Article 23 – General Principles Relating to International – countries are to cooperate to combat `online piracy`.
Article 24 – Extradition
– There is an obligation on the UK to extradite. Extradition can only be sought where the maximum penalty is at least 1 year in jail.
– Maximum sentence in UK for online piracy is 2 years in jail.
(There is not much you can do if you are the subject of an extradition order except appeal to the supreme court)
It is important to note that the European Convention on Cybercrime 2004 is only a Convention. It is not directly effective in the signatory states (this means it does not directly apply in the signatory states). Signatories still have to implement a local law to make the Convention law in their country (For example the EuropeanConvention on Human Rights 1950 was implemented by the UK Human Rights Act 1998).
Alternatively some signatory states may already have relevant laws in place which deal with the criminal aspects of copyright infringement. There is an obligation to interprete those relevant laws in the spirit of the Convention. There is an obligation to follow the Convention even if it is not yet actually the law in the UK because the UK signed the Convention.
UK and EU Online Piracy Law (Copyright Infringement)
The seminal UK law on copyright is the Copyright Designs and Patents Act 1988
Directive 2004/48/EC (Directive on the enforcement of intellectual property rights) implemented into United Kingdom law by the Intellectual Property (Enforcement, etc.) Regulations 2006 (deals only with civil law).
Most recent law: Digital Economy Act 2010 (not all of it has been implemented) is the so called implementation of 3 strikes you are offline regime. It came into force on 08 June 2010 but its most controversial sections will come into force by statutory instrument (it too is a civil law related).
France Online Piracy Law (Copyright Infringement)
HADOPI law or Creation and Internet Law (was very controversial when first introduced)
On 22 October 2009, revised version adopted, requiring judicial review before revoking a person`s internet access.
Sweden Online Piracy Law (Copyright Infringement)
IPRED April 2009, same law implemented; also controversial in Sweden.
Digital Millennium Copyright Act (1998)
SOPA and PIPA are about foreign online pirate websites but they also could be used to infringe on local US websites because of their intrusive nature (derailed).