This week it was widely reported that a 58-year-old grandmother from Scotland had become the first person in the country to be convicted of file-sharing offences. Today, David Cook from Burrows Bussin Solicitors, a law firm which has defended individuals in the OiNK and FileSoup BitTorrent cases, voices his concern at the ongoing rights-holder led persecution of those least able to defend themselves.

This a guest feature from UK-based lawyer David Cook from Burrows Bussin Solicitors.

Cook and Burrows Bussin successful defended a 17-year-old alleged uploader to the now-defunct music tracker OiNK, and a 56-year-old administrator of the BitTorrent forum, FileSoup.

It was reported in the national media on Tuesday 10th May that Anne Muir, a 58 year old woman in Glasgow has pleaded guilty to criminal file-sharing offences, for which she will be sentenced later this month. Although not a party to that case, I believe that this is a stark reminder of where we are at.

It seems to me that the media consciousness has been diverted by the Digital Economy Act 2010, and all that it entails. The infringement notification procedure and “technical measures” suggested for alleged file-sharers and website blocking has understandably caused great concern. However, the elephant in the room remains s.107 of the Copyright, Designs and Patents Act 1988 (CDPA). This legislation is the source of the ability of the State to prosecute someone in a criminal court for a copyright offence.

It is still possible for a criminal prosecution under CDPA, despite the availability of the civil remedies of which the public are now more than aware. The Digital Economy Act 2010 not only leaves the criminal copyright provisions unchanged, but, in fact, ups the ante. As well as the Crown Court having the power to impose a 10 year custodial sentence and an unlimited fine, the Digital Economy Act now gives the Magistrates Court the power to impose a £50,000 fine. Be under no illusions – people can and will continue to be prosecuted in criminal courts for file-sharing offences.

Reports that the British Phonographic Industry and International Federation of the Phonographic Industry played a major role in the prosecution of Anne Muir are of great concern.

In the recent OiNK case, in which we successfully defended a boy accused of similar file-sharing allegations, the International Federation of the Phonographic Industry and British Phonographic Industry used their influence to gain entry to our client’s family home, gather evidence and dictate the direction of inquiries. Despite Government ministers categorically stating they do not want to see teenagers arrested in their bedrooms for file-sharing, such assurances are evidently hollow. That prosecution was not only incompetently handled, it was also never in the public interest and the CPS were forced to admit that in March 2010 when they discontinued their case in the face of the rigorous and aggressive defence that we had forwarded.

In February 2011, we had another case before the UK courts. Again, a rights-holder group was heavily involved in the prosecution. The FileSoup prosecution was aimed at the peer-to-peer distribution of films, so the Federation Against Copyright Theft was the relevant body. Again, we mounted a robust defence and, again, the CPS dropped the case, offering no evidence and allowing our client to be formally acquitted by the Crown Court Judge.

It is of concern that our clients in the OiNK and FileSoup cases were members of the public whose alleged criminality appeared extremely limited. In OiNK, it was alleged that our client had found the music on one publicly accessible music site and simply moved it onto a members-only site (OiNK). In FileSoup, the prosecution was initially focused on a film (X-Men Origins: Wolverine) for which they had already prosecuted the person responsible for the real criminality in this case – the original leaker. That film was then circulated on the internet for a considerable period of time and its distribution was widespread. FACT then took the decision to prosecute a non-profit making community forum of film buffs. This FileSoup prosecution was clearly not directed at the person responsible for any loss or to blame for any leaks.

The OiNK and FileSoup investigations were carried out almost entirely by the rights-holder groups, who then gave the police and CPS the evidence they sought to rely upon, in order to prosecute. However, the duty is on the police and the prosecuting authority to independently investigate alleged offences. It appears that they simply did not do so in those cases. The only people who had investigated were the rights-holder groups, who are not independent bodies. FACT, BPI and IFPI are funded by the media industries and it was they who controlled the OiNK and FileSoup investigations. Little or nothing independent was carried out by the police. The role of the rights-holder groups became effectively that of investigators, witnesses and experts in their own case.

These internet sites are evidently, in the view of the rights-holders, encouraging breaches of copyright. While there is no doubt that a copyright holder is entitled to the protection of the law, it is nevertheless fundamental that a prosecution is conducted impartially and independently. This was not our experience in the OiNK and FileSoup cases.

I only know about the case of Anne Muir from the media reports that have been published. However, I am willing to bet that the rights-holder groups have acted in a similar way in the prosecution of Muir.

It was our view that the rights-holder groups target the people with the least chance of resisting a prosecution of this nature; those having made no commercial gain and often with little funds to defend such a case. They have prosecuted the very people who spend significant amounts of their time and money in pursuing their interests in music and film. It certainly appears that rights-holder groups are avoiding taking on those with funds at their disposal, perhaps for fear of them exposing the manner in the way in which these groups go about such investigations. It was only through a methodical and painstaking consideration of the evidence that we were able to draw the attention of the Court to the investigative failures and flawed evidence in the OiNK and FileSoup cases.

It is reported that Anne Muir was not a leaker or a site administrator, but a simple file-sharer on the Direct Connect client. She therefore appears to be an unremarkable file-sharer – part of a class of people that must include the vast majority of UK citizens between the ages of 14 and 30. This legislation and series of cases seek to criminalise a large proportion of the youth of this country.

The inequality in real terms is substantial. FACT, BPI and IFPI wield enormous financial resources and clout. They clearly do lobby Parliament and pressure prosecutors to take cases on their behalf. FileSoup and OiNK operated as forums for people with an interest in films and music and were not commercial or profit making organisations. Anne Muir was not alleged to have made any money from her file-sharing activities.

FileSoup, OiNK and the prosecution of Muir were directed at people who are considered in the most vulnerable groups of society. Our OiNK client was a 17 year old boy. Our client in FileSoup was, due to illness, largely housebound in his flat in Scotland. Anne Muir is reported to have suffered mental health problems.

These are the people who the mighty US film and music industries choose to pursue.

The frustrating part is that it falls to the British tax payer to fund these prosecutions. The defence funding, also borne by the British tax payer, is based on a page count of disclosed material controlled by these rights-holders groups. In the OiNK and FileSoup cases, the funding we were able to receive was inadequate to cover the costs that we had incurred in defending the prosecutions. These are the conditions in which alleged file-sharers are supposed to defend against the limitless resources of the US media industries.

As news of Anne Muir’s conviction washes over an indifferent British public, the repercussions may eventually be felt as the rights-holder groups become more buoyant by their successes in Court and through their lobbying. With vast proportions of the UK public involved in file-sharing to some degree, who will be next?

David Cook is a solicitor from Burrows Bussin Solicitors in Manchester.