This report by an Ex-recording industry lawyer makes for joyous reading for UK filesharers
http://www.slyck.com/news.php?story=972The BPI claim to be reluctant litigants, saying that they don’t want to make a business out of suing people, and the statistics certainly do tend to support their claims. They are misleading nobody, for if they were planning to make a business out of it, they have been spectacularly unsuccessful. To date they have actually succeeded in taking nobody to court. Yes, that’s right, nobody. All they have succeeded in doing is frightening a small number of vulnerable people into paying up rather than risk a legal battle, whilst at the same time lending phenomenal publicity to the fact that people can get something for nothing virtually risk free.
Matt Phillips, spokesperson for the BPI, is on record for having said that the BPI are only targeting those who upload - which includes of course, those who share or seed copyrighted files. Whether the BPI would stand a snowball’s chance in hell of succeeding in any action against anyone accused of downloading even if they wanted to is a moot point. As matters stand, neither uploading nor downloading copyrighted files for personal use in the UK is actually against any specific law.
And make no mistake about it, unless the file transfer has been made for commercial reasons (i.e. "not personal and domestic reasons”) the only remedy open to the BPI is to take civil action based on a breach of the license terms. Not having grossly exaggerated “statutory damages” to fall back on, as in the USA, they have to quantify their actual losses – in other words, they have to prove what they have actually lost as a consequence of any alleged infringement. Does this make a real difference? Too darn right it does. In the USA the author of a copyrighted item can claim between $750 - $30,000 for accidental infringement without even having to prove that he has lost a single cent (17 USC §411a) going up to a staggering $150,000 per item for willful infringement (17 USC §§412, 504c) – not too mention having to foot the legal bill.
The license for any work amounts to much the same as a EULA (End User License Agreement), a contract between the authorized seller of copyright material and the buyer of such material, which in turn transfers or passes on to any subsequent purchasers. But how can any person who subsequently came into possession of such material (e.g. an electronic version) be bound to the terms of any license agreement that were not brought to his initial attention or weren’t otherwise immediately obvious?
I think this reflects what we have been quietly believing for many months now since KM did some browsing around the legal sites, the basic premise is that downloading for personal use is 100% legal and the BPI can only try to start legal proceedings if you are allowing uploads but this can be neatly side-stepped by claiming that you where not aware of any copyright existing on something you downloaded yourself.. very nice
I think with this legal appraisal from a man who knows the situation from the other side of the fence All UK filesharers should get rolling and forget any "we are watching" you myths
