
Private justice: How Hollywood money put a Brit behind bars  - ValentineC
http://arstechnica.com/tech-policy/2012/08/private-justice-how-hollywood-money-put-a-brit-behind-bars/
======
drucken
The UK has a spectacularly weak judicial system for an industrialized country.

From the lack of judicial review of primary legislation ([1]) through a huge
abundance of archaic haphazard laws, to lack of representative judges, to the
ease with each political, police, partisan and private organisations can
influence the judiciary, the UK system is ripe for abuse and disruption by any
industry. It is also fertile ground at this time due to the dual US/UK
government focus around issues of "Intellectual Property".

From a general perspective, the only saving grace, which is a relatively minor
one in practice (by volume not significance), is that EU laws normally have
precedence and judges are therefore unable to act completely unilaterally
without risking being overturned.

Just think: what other industrial country permits unilateral _criminal_
prosecution from _private_ entities with explicit support from one of its
judges?

[1] Yes, I am aware that without an arms-length written constitution, this
would potentially make things even worse.

~~~
objclxt
I'm not sure what perspective you're writing from, but I think many people in
the legal profession would disagree with you.

Firstly, the UK has several distint judicial systems. I suspect in this case
you're referring to the _English_ legal system (Scotland having its own,
entirely separate, process). There's then the civil and criminal courts. The
former are held in high regard around the world - the English courts are often
the venue of choice for impartially resolving international disputes and
litigation.

You can argue it is a discrepancy that private prosecutions are still allowed
- at some point in the past they did actually serve a purpose - however, under
the English system it is up to the government, rather than the judiciary, to
correct that.

I am not pretending it is a perfect system: far from it. I think in this case
the judge behaved inappropriately, and the logic being used to force a
copyright claim (which is a tort, i.e, purely a civil matter) into a criminal
one (conspiracy to defraud) is potentially very spurious. However, this is
also why an appeals system exists.

What I'm basically trying to say in a round-about way is that I don't think
the English courts are 'spectacularly weak' - they have their problems, but
what judicial system _doesn't_?

~~~
tptacek
The UK has a criminal copyright infringement statute; like the US,
infringement becomes criminal when you do it for money.

It is news to me --- and, wow --- that private entities can prosecute crimes
in the UK. Am I reading that right?

~~~
arethuza
It seems odd to me that in other countries individuals _can't_ bring criminal
cases - leaving everything to the "official" prosecutor (e.g the Procurator
Fiscal here in Scotland).

~~~
tptacek
How, exactly, do pleas and charge reductions work when the person conducting
the prosecution has none of the incentives for leniency that the state does?

~~~
waqf
Are you talking about plea bargains, that American system for bullying people
into forgoing their right to be tried on the evidence?

~~~
tptacek
It seems like you either think we should eliminate the ability for defendants
to negotiate lesser sentences, or you want to make an entirely orthogonal
point about the US criminal justice system. Which is it?

Prosecutors routinely have to decide between pressing an ambitious charge with
a higher risk of acquittal, or settling for a lesser charge. This happens all
the way up and down the spectrum of offenses; for instance, there's something
like 4 different things a mugger in Chicago can get charged with. How exactly
do this balance get handled when the prosecutor is _by charter_ acting in
their own interests and not the interests of the community?

~~~
waqf
para 2: I don't understand the issue. Surely the prosecutor should throw
everything s/he's got and the judge and jury, who _are_ charged with
protecting the interests of the community, decide what sticks? For the
prosecutor to be involved in that decision seems a conflict of
interest/incentive to corruption (this is the point you are making about
private prosecutions, but I would argue that even a public prosecutor is
rewarded for convictions).

para 1: yes, I want to eliminate the ability for defendants to negotiate
lesser sentences. Like many practices we like to despise governments for
tolerating (bribery, corruption, torture), it's convenient, practical and even
successful in many cases, but it's totally unjust.

~~~
tptacek
It's totally unjust if the world is a computer simulation in which arbiters
have perfect information and there's a binary right/wrong answer to every
problem. Since that's not the world we live in, I am very glad prosecutors are
allowed the discretion to follow human intuition about the grade of offense to
charge. Like most other government interventions, there are checks and
balances regulation that discretion.

------
S_A_P
That is bizarre. The government is, in theory at least, non biased towards any
particular private interests. The fact that a private entity can launch its
own investigation using its own methodology and then use said evidence to take
away someones freedom is downright terrifying.

~~~
sdfjkl
It's increasingly becoming clear that the practice is very different. There's
several cases, most notably Assange and the current Megaupload trial that
indicate that private entities are putting pressure on governments, who in
turn put pressure on their peers in other countries. And it can't all be
written off as conspiracy theories anymore.

~~~
molo
I'm sorry, what is the private entity involved in Assange's case?

~~~
abend
I think SAP is referring to an external entity having an influence on a
government's judicial process, not necessarily strictly private. Whether it's
the US Government or a special interest group. Assange's case included.

~~~
molo
I don't think that is the intended statement at all. Please reread this
sentence:

> There's several cases, most notably Assange and [...] that indicate that
> private entities are putting pressure on governments, who in turn put
> pressure on their peers in other countries.

------
admg
I can't believe what I've just read. A civil case yeah why not but criminal
charges and imprisonment from a private entity after the CPS have basically
said its not worth it? Scary.

~~~
_delirium
English law has only partly transitioned to public prosecutions. Private
prosecutions are still legally the norm, but CPS prosecuting a case is de-
facto the norm, as they have the right to take over a private prosecution. In
most cases, CPS either takes over a case and prosecutes it, or takes over a
case and drops the charges (if evidence is wholly insufficient, or continuing
prosecution is against public policy). But this leaves the awkward vestigial
category: cases that CPS chooses neither to intervene to prosecute _nor_ to
intervene to drop, which can go forward at a private party's own expense.

(Note: Only true of English/Welsh law; Scots law makes it much harder to bring
a private prosecution.)

~~~
admg
Thanks for the info, a quick google showing the rarity of private prosecutions
in Scotland is definitely encouraging!

------
pdx
Off Topic

    
    
       At the site's peak in mid-2009, STC attracted hundreds of    
       thousands of users per day, earning Vickerman up to 
       £50,000 ($78,500) per month in advertising revenue.
    

Let's say he did 999,000 users/day (to stay in the hundreds of thousands).
That's still only $30K per month, if we assume a CPM of $1.00, which seems
reasonable for a site like this.

~~~
adrr
CPM is by viewed ad and not unique visitor. Probably each user has 4 or 5 page
views, then each page view counts for 3 or 4 ad views.

------
lumberjack
Somebody once pointed out that such link aggregation sites that operate
outside the US seem to be getting in more legal trouble than similiar sites
operating under a US domain and possibly on US soil. Is this true and if so,
why?

~~~
metatronscube
The UK 'Government' is just a lapdog for US interests and they are scared of
pissing them off. So they can get away with it. The English courts in
particular are weak compared to others in the UK as well. I think they need a
change of Government.

~~~
TazeTSchnitzel
That's not true. Certain politicians have been "lapdogs", though. You think we
voted for the Iraq war?

~~~
hahainternet
Tony Blair was re-elected, so I'm not even sure that this argument has merit.

------
jrockway
Especially ridiculous is that the judge complains that he has no remorse for
"making available" content that "infringes copyright". But of course, he
didn't make any such content available. (Do .torrent files "infringe
copyright"?)

~~~
vacri
.torrent files make that content available. The simplest counterargument is
that if his actions didn't make that content available, what were all the
visitors to his site doing?

Should a person be able to successfully defend with "What's the problem, I was
only giving copies of the vault key to the people who I knew would burgle it.
I never handled any of the vault contents myself!"?

~~~
carlio
Herein lies the problem. While your vault example makes sense, you can also
say that someone selling knives or guns can't be responsible for people using
them to murder someone else. Where do you draw the line? If you are merely
providing something, where is the line where suddenly it's my fault instead of
the fault of the user?

I think the difference here is that information and objects have an intended
purpose - a knife is usually for chopping food, a gun is usually for... erm -
however a vault key clearly can't have a use outside of using it to get into
the valut. Where to .torrents fall in this? It's not the vault key situation,
because there are definite good uses for them (linux distros, I believe
Blizzard uses bittorrent to distribute updates?). However, the _majority_ of
torrent usage is for piracy [citation needed].

So I guess what I'm saying is that all objects have a potential for negative
usage and a potential for positive usage, and we're trying to draw the line
somewhere in a rather undefined way.

To me, it seems unfair and harsh to be imprisoned for something that by
another interpretation seems okay. I have a reasonable expectation not to be
imprisoned for creating a site where people can post content. If it's coopted
by the community into a place where people post torrents, it seems that right
now I could be sent to jail for that.

The problem here isn't the intention of the owner of the site, just like it
isn't about Kim Dotcom's intention. I don't disagree that they were completely
aware that they were profiting from other people's desire to pirate. My
problem is that all of these legal cases against these people seem to be
brought in a way that doesn't feel 'just'.

~~~
vacri
The key part of my analogy is "that I _knew_ would burgle it". It's exactly
like being an accessory to a crime. Drive a getaway car and you're not going
to be able to use "hey, driving is completely legal, you can't charge me!"

.torrents themselves are perfectly fine, just like knives. I'm not making the
argument that the object should be banned. But if a frothing hooligan runs up
and asks for your knife because he's going to stab that guy over there, it's
pretty clear that if you hand it over you've facilitated a crime.

So it's not the innate nature of the .torrents themselves, but the use of them
as a nexus to set people up with illegal content. Like being a middleman
selling stolen property, perhaps. You didn't steal it, but you did make it
available.

------
epo
A thought experiment: What if he was facilitating access to child pornography
rather than Hollywood films would people be as outraged? More so? Less so?

If the suggestion of an income of up to £50,000 per month is even in the
correct ballpark then this character was in the business of profiting hugely
from copyright infringment and the jail time is appropriate.

The outrage about this is just windbaggery from thieves bemoaning the fact
that they can't steal with impunity. And yes, depriving people of income is
theft. Don't want to pay for a movie? Then watch something else.

~~~
derekp7
"depriving people of income is theft" So if someone comes out with a competing
product to mine, and splits the market in half, I lose (was deprived of) half
my income. Was that theft? I think a more appropriate phrasing is "a
government granted exclusive monopoly is a property right -- anyone violating
that exclusivity is devaluing that property" which itself may be just as bad
as theft (or more likely vandalism -- if someone takes my car, or destroys it
on site, the damage is the same).

~~~
vacri
Too much of this debate is around how to define 'theft'. Really the issue is
that folks are accessing a service providing entertainment (movie, tv show,
game, music) without paying the requested fee by those who provided it.
Whether or not it fits into the various definitions of theft people throw
around is largely immaterial.

------
sadris
I'm glad there is private-sector criminal prosecution in UK, wish it was here
in the US as well. Then maybe cops would think twice before murdering
citizens; they currently get off free every time because the DAs never
prosecute one of their own.

