A Consultation Response

Copyright
Infringement Penalty
Changes: A response
A consultation on changes to the penalties for offences under
sections107(2A) and 198(1A) of the Copyright, Designs and Patents Act
1988(Penalties for Online Copyright Infringement)

Andrew Norton
8/17/2015

Contents
The Question ................................................................................................................................... 2
The Response .................................................................................................................................. 2
Background and Factual Assertions. ............................................................................................... 2
Enforcement Actions .................................................................................................................. 2
Case study: Anton Vickerman ................................................................................................. 3
Copyright Trolling........................................................................................................................ 4
YouTube Pirates .......................................................................................................................... 5
Website infringement ................................................................................................................. 7
Historical Parallel ........................................................................................................................ 8
Losses and “Harm” Due to Infringement .................................................................................. 10
Case study: BVA v MPAA....................................................................................................... 10
Hollywood Accounting .......................................................................................................... 11
Solutions........................................................................................................................................ 13
About............................................................................................................................................. 14
References and Sources ................................................................................................................ 15

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The Question
Should the maximum custodial sentence available for online and offline copyright
infringement of equal seriousness be harmonised at 10 years?

The Response
No, of course not.
Seriously, the answer is that simple; it's idiotic, childish, small-minded, ill-informed, and
indicative of either a very closed mind, or very loose professional morals that would even
consider the question as more than a farce – an attempt to invoke Poe's law 1.
The desire to increase punishments for copyright infringement is a desire by some (mainly well
connected) to prevent or restrict technological progress and artificially prop up notions that
worked in the 19th and early 20th centuries, but which are based on assumptions that are not true
today, and haven't been for many years.
It's not a lack of punishment that is the problem, and the 'weak deterrence value' is not the reason
for infringement becoming commonplace. The problem is that people no longer see the law in
this area as timely, relevant or morally justified.
Instead copyright law has become a symbol of privilege (or “private law”), written with
connected groups in mind, and disdainful of the regular man-in-the-street. Even this very
consultation, which demands evidence for views and positions, is presented without any
evidence that any such change is even needed, or desired.

Background and Factual Assertions.
To fully appreciate the details of the question, it’s important to look into a wider area of
copyright and copyright enforcement.

Enforcement Actions
Modern-day copyright enforcement is as close to the wild-west as you’ll get. With the most
flimsy of accusations, you can remove content from the internet without care, attention or

1

Poe's law is an Internet adage which states that, without a clear indicator of the author's
intent, parodies of extreme views will, to some readers, be indistinguishable from sincere expressions of the
parodied views.

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consequence. You can hijack content, and make money off it for your own benefit, and you can
do all of this with zero consequence.
Well, you can do this if you’re a major media company – a regular citizen has no such ability,
and cannot even get a legitimate complaint substantiated against such a company. Copyright
law has become the quintessential definition of “privilege” – a law that grants certain people
special rights.
As noted above, the main problem with copyright law is not that penalties are too low; it’s that
in many cases they’re too high, and they’re not even-handed. Far too often enforcement
vehicles are at the beck-and-call of industry lobby groups and only enforce when told to by
those private business groups, sometimes without any due process and often completely
outside their jurisdiction or realm of responsibility. Increasing penalties will not improve this
situation, it will only make it worse, and accelerate the process of law enforcement and
statutory bodies being turned, and accelerate the process of law enforcement and statutory
bodies being turned into a for-hire goon squad of media interests.

Case study: Anton Vickerman
Anton Vickerman ran the surfthechannel.com website. This site provided links to
content on other servers, and did not infringe content itself. Nevertheless, on
information provided by a private company (The Federation Against Copyright Theft
[FACT] – an ironic name given the counter-factual nature of the name) gathered by
private investigators operating under false pretences i he was raided and arrested by
Northumbria police on August 18 2008, then let out on bail. 2 weeks later,
Bedfordshire Trading Standards Financial Investigations Unit [BTSFIU] served an ‘asset
restraint order’ against him. This unit is well known for its tight and cosy relationship
with FACT, having filed several such orders on behalf of the FACT, including cases like
this one where the unit had no jurisdiction (the unit only has powers in Bedfordshire,
while Vickerman was in Tyne&Wear). This use of a ‘pet’ unit should have set alarmbells ringing in the enforcement community, and should have prompted a review into
copyright enforcement by trading standards bodies, but it did not.
The CPS ultimately declined to prosecute, but a semi-perverse private prosecution
continued, and a bizarre result of a conviction for “conspiracy to defraud” was
reached ii, although the question of who exactly was defrauded is still unknown – no
one going to the site was under the impression it was owned by FACT, and it was not a
pay-to-access site. It was bizarre in all ways. Additionally, 2 months ago, he was facing
further jail time for violations of the Proceeds of Crime act, spearheaded by the City of
London police and aided once more by FACT iii.

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Vickerman’s case is not alone in being driven by media interests and industry lobby groups that
have close ties to the alleged victims. There is the similar case of Alan Ellis, who ran the bit
torrent tracker Oink. Following a joint operation (Operation Ark Royal) between Interpol, the
International Federation of the Phonographic Industry [IFPI] and the British Phonographic
industry [BPI] Alan Ellis was arrested at his home in Middleborough. This raid was captured by a
BBC news camera crew that had been invited along specifically to document the arrest for the
news, and make a public statement. Again, we have law enforcement working with private
companies representing the alleged victims to collect and detect evidence, and perform the
“raid” with invited news crews, complete with statements from Cleveland police based entirely
on the claims of these lobby groupsiv. Further the lobby groups who made the accusations and
stood to profit from the convictions were given property of the defendant, and then proceeded
to use it to make baseless accusations and statements defaming the defendant in an attempt to
prejudice the case, all with the blessing of the prosecution team v.
After similar wrangling’s to the Vickerman case, Ellis was eventually found NOT Guilty of
Conspiracy to Defraud vi (this ruling probably prompted the CPS not to prosecute in the
Vickerman case) – the first time this approach in charges had been tried.
These are two examples, but there are many more. There is a fundamental problem with them
though, in that a private company, that represents one or more of the alleged victims, is
allowed to play a major – if not THE major – role in any investigation and prosecution. It’s not
something we accept in any other crime investigation – the brother of a murder victim doesn’t
lead the interview of the suspected killer, people aren’t arrested for burglary based on the sayso of the person whose house was broken into. In fact in any other investigation, such a thing is
considered a conflict of interest and avoided at all costs. However here it’s not only permitted,
it’s encouraged. That makes a mockery of any semblance of justice.

Copyright Trolling
Further issues with copyright enforcement actions were highlighted a few years back due to the
actions of the law firms Davenport Lyons, and ACS:law. The scheme, now known as ‘copyright
trolling’, became such a problem that the BBC even covered it and took the consumers side via
their Watchdog program.
The situation started in March of 2007, with accusations being sent to home internet customers
that they had been downloading the game “Dream Pinball”. The letter from law firm Davenport
Lyons demanded a settlement amount of £340 or more, ‘or else’. That ‘or else’ was to be
dragged to court, to fight a civil lawsuit where they would demand thousands in damages as
well as costs.vii A short while in this was bolstered with a claim that they’d won £16,000 in court
on one of these cases (which would eventually turn out to be extremely misleadingviii)
Over time this progressed from 3rd rate games, to hard-core (indeed “unclassified extreme” ix
also fit as adjectives) or homosexual x pornography with Davenport Lyons being superseded in
the job by the law firm ACS:law under the guidance of Andrew Crossley. The “evidence”
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gathering team was still headed by the same people though. In 2010 ACS reported they had
received over £1M in settlement fees, based mainly on the fear people had of being associated
with titles like ‘Army fuckers, but with no definitive evidence xi. They were somewhat aided by
the last Labour Government, who was doing all they could to capitulate to the media industry
with the cataclysmic “Digital Britain” report, and associated Digital Economy Act, but when you
have members of the House of Lords shouting down things xii you might just have a problem.
Ultimately, the Chancery Court stopped rubber-stamping the Norwich Pharmacal orders, after
questions about prosecution of cases (refusing to let some be dismissed by the plaintiffsxiii) and
ACS’s Andrew Crossley faced disciplinary proceedings and was disbarred for a time. However,
the underlying issue, the framework that led to such an extortionate scheme, is still in place,
only with the proposed sentence extension, expect to see ’10 years imprisonment’ added to the
threats.
This kind of scheme also goes on around the world, with the US the most prolific venue at
present. Two of the most well-known there are Prenda and Malibu Media/X-Art. They proceed
in a similar way to Davenport and ACS, but with variations to fit the US legal system 2, and also
attempt to avoid actually prosecuting the case, preferring instead to demand settlements. If a
settlement is not forthcoming, they’ll dismiss a case – even cases where they had won a default
judgement would be dismissed days later if there was a hint the defendant was going to contest
it 3. In a recent hearing (4 May 2015) 91yo Federal Appeals Judge Pregerson went through the
modus operandi of the system, before saying “That is just an ingenious, crooked, extortionate
operation” xiv.
This is, in fact, the case of most online copyright enforcement schemes.

YouTube Pirates
Perhaps one of the biggest changes online in the last 15 years, and one that’s had ripples far
beyond just the internet, has been the rise of the website YouTube. Founded just over a decade
ago, it’s the definitive website for video online, with players built into TV’s and satellite units,
making it a de-facto media empire of its own.

2

Instead of using a Norwich pharamacal order to obtain ISP account information, in a US court they must file a
John Doe suit, then use ex-parte discovery to obtain subscriber information, which can be contested by the
subscriber, unlike the UK
3
I was involved in just such a case, AF Holdings v Patel (2:12-cv-00262 NDGA) where I was consulted by the
defense counsel. Docket at the Internet Archive
https://ia801600.us.archive.org/7/items/gov.uscourts.gand.188990/gov.uscourts.gand.188990.docket.html

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However, there are some well documented problems when it comes to YouTube and copyright.
Since anyone can upload anything, people often do, and that includes copyrighted clips. As a
result, YouTube implemented a ContentID system to try and catch infringing copyrighted
material and deal with it. It has a problem with verification though, and an even bigger one with
accuracy.
The most damming statement for copyright enforcement on YouTube came during the Viacom
trial. In that case, Viacom was suing YouTube over the constant, persistent infringement of its
videos on the site, and demanded a billion dollars in damages for 150,000+ unauthorized clips
which had been viewed more than 1.5Billion times. Most tellingly though was that during the
case, which focused on Viacom suing for unauthorized clips, Viacom themselves couldn’t tell
which clips were authorized or not and indeed some of them were uploaded by Viacom or its
subsidiaries themselvesxv. If the rights holders themselves don’t know if something is infringing,
and in fact suing for things that are not – how is anyone else supposed to know?
There’s also a lack of acceptance of other issues non-infringements. I urge you to consider the
case of Lenz v Universal Music Corp. xvi where it was ruled that Universal’s takedown of a video
did not consider fair use as required by the law and that takedowns were issued in bad faith.
There are other issues too. It’s quite common for works in the public domain to be claimed by
companies, thus generating revenue for them and effectively stealing (as in actually converting
income, rather than infringing a duplication monopoly). I have experienced this first-hand,
where a video of my child’s school band concert had a claim put on it for Dvorak’s Symphony
number 9, which was written in 1893 and is clearly, unequivocally in the public domain.
Nevertheless, this company (AdRev Publishing) claimed it and was putting adverts on it, and
unless I made a counter-claim, they would continue to earn money. And because of the way
copyright law has become, if they substantiate the claim, I get a copyright ‘strike’, if it turns out
they had no case, they do NOT get a strike. It doesn’t just happen to public domain works
though, it can also happen with Creative Commons Licensed works, and again, I’ve had that
happen xvii to me.
Nor am I alone in this, it is a widespread and well known problem xviii. We actually have Piracy
from the Public domain, with the perpetrators being those who bleat about piracy and make
claims of loss, damage and the need for greater enforcement – the exact same people who
pushed for the penalty extension this very consultation deals with.
There’s a good reason for this too – there are no penalties for them for doing so. If I infringe
their rights, even accidentally, then I’m liable (on YouTube it’s even if they feel I’m infringing,
regardless of if I am or not). However, if they over-reach and make claims that people are
pirating when they’re not, then they face no repercussions. It’s a form of immunity that
becomes a de-facto admission that “there’s no such thing as bad enforcement”.
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This might seem like hyperbole at first, but it was borne out in 2011 when UMG arbitrarily took
down the MegaSong, created and published by Kim Dotcom with a broad license for others to
share. UMG’s takedown was performed via access to the YouTube system (or ‘partnership’xix),
ostensibly for copyright enforcement, but which was then used for arbitrary takedowns of any
work with no recourse xx, even of works where they have no interest, as in the aforementioned
MegaSong xxi.
[Note for IPO Lawyers, this has been well documented factually, and as such is not in any way
subject to claims of libel or otherwise, as you have previously asserted in copyright
consultations, such as in regards to my submission to the consultation of 2011/2012 concerning
compulsory licensing xxii]

Website infringement
So now to move back to website infringement, where the bulk of the new punishments will
presumably be applied.
Here, we definitely have a problem. As with the YouTube ‘thieves’, and the Viacom case, we
have another issue where most of the time those who have set themselves up as the enforcers
have absolutely no clue what they’re doing.
Here the Chilling Effects clearinghouse has been invaluable in highlighting the biggest problem
with those enforcing copyright – they don’t actually bother to check their targets. Largely
automated systems glom on to keywords and just issue takedowns without any due-diligence
checking. Perhaps the most famous example recently was a notice sent out on August 4 2015 to
the video site Vimeo to ‘protect’ the movie pixels, sent by a company called Entura
International on behalf of Columbia Pictures.
The notice, copied to the ChillingEffects site xxiii, shows the problem quite clearly.
DESCRIPTION"Pixels",

"Pantone Pixels", "Pixels", "Pixels - HD Trailer",
"Detuned Pixels - Choco", "Pixels - Life Buoy", "Pixels: Redeye @
Kettering", "Pixels Festival 2015", "Love Pixels- VJLoops", "Pixels
Official Trailer (2015) - Adam Sandler, Peter Dinklage"

None of these targeted works were infringing copies of the Adam Sandler movie. In fact, two
were trailers for the movie, one was an independent film that was actually the source for the
film in question, and the others had nothing to do with the movie except they used the word
‘pixels’. The only actual hit was the trailer put out by the studio to promote the film.
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Other companies pad their claims, with repeat claims, entirely false claims xxiv or use scripts to
generate links that may not be on a site xxv, or are overbroad xxvi and send them, taking time (and
thus money) for a receiving company to process, and inducing them to blindly accept notices as
valid in order to keep costs manageable. Then can do this because there are absolutely no
consequences for making false copyright claims, except your client may dump you for someone
else, as Microsoft did xxvii when French company LeakID made some rather embarrassing
copyright claims xxviii on behalf of MS, including the Wikipedia page for Office 2007 and several
pages on Microsoft’s own site. Of course, the crowning glory is that the notice also included a
claim to a homosexual pornographic film [Gay Amateur Spunk, Volume 2] as belonging to
Microsoft.
And sometimes the industry groups get in on the action too. On the plus side they can generally
identify the work accurately, on the negative side they don’t seem to bother asking if anyone
wants them taken down.
Back in 2008, Travis were telling their fans to freely share a track from an upcoming album Ode
to J Smith. When an independent music blog called SoMuchSilence.com got hold of a copy, it
put it up in accordance with the band’s wishes. He then got a notice from the IFPI claiming he
was infringing. Except he wasn’t, which I personally confirmed with the band xxix. After the band
told the IFPI to back off, they recanted, sending an email to SoMuchSilence xxx claiming they
were just being proactive, and they can’t help sending false takedowns because there’s so
much piracy, and the band had the gall not to inform the IFPI beforehand. Remember, this is
the same IFPI that’s coordinating raids with police forces and then getting involved in the
evidence collection and case building.
With no consequences, there’s no reason for any company to ever bother checking their claims
are accurate. Imagine if a police force just went around arresting anyone that looked a bit
funny, locking them up and when their mistake is later pointed out saying ‘oh yeah, sorry, but
there’s just so much crime it would take too long to check our facts first’, and walk away
without any consequences.
We wouldn’t stand for it in any other context, but it seems ‘natural’ and acceptable in the
copyright sphere?

Historical Parallel
There’s actually a historical parallel when it comes to copyright enforcement, and it comes from
19th Century Britain. Then – as now – new technologies sought to disrupt the existing
distribution monopolies and industries that controlled it. That new technology was the motor
vehicle.
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In response to lobbying, the UK passed the locomotive Acts, with the most famous being the
Red Flag act (Locomotives Act 1865) which imposed highly restrictive speed limits on road
locomotives, restricting them to a speed of 4mph outside towns and 2mph inside them, carry a
crew of 3, and travel with a man required to walk 60 yards ahead of any vehicle attached to
another (such as trailer) to warn horses and carriages and to signal the traction engine to stop if
other traffic came up on it until it passed.
It was a fairly blatant attempt to kill the technology by making it incredibly difficult to use
legally, and at far greater disadvantage than other modes of transport deemed ‘acceptable’
such as horse-drawn vehicles and the still fairly new railways. The most common justification
for this was that the vehicles scared animals (although how that would differ from the
unrestricted railroads was never made clear) or that they would damage the roads, although
with wider tyres, better brakes used in combination with a reduction in propelling power and a
distinct lack of horse hooves striking the roadway it almost certainly was better for the roads xxxi,
but as usual when an entrenched technology is lashing out at a new upstart, facts are given
little consideration.
Eventually, despite all this, the Locomotives on Highways Act 1896 undid many of the most
egregious of restrictions, and led to the birth of the British car industry. As a result of this
though, the established coaching networks, and the many industries that centred around horsebased transport were doomed to obsolescence. Farriers and blacksmiths, important respected
men, and a powerful trade 150 years ago, are an anachronism today, and there are only a
handful left. Coaching inns, breeding farms, livery stables etc. All industries that were staples of
early 19th century life, reduced to a shadow of their former glory by the 1930s, and all but
eradicated by the 1960s (leading to the running gag on Steptoe and Son)
If anyone were to suggest now, that we should abandon cars, and return to horses, to ‘protect
key industries and thousands of jobs’, you’d be sectioned under the Mental Health act. While it
was true, and was the motivation behind the Locomotive Acts, we can see now with hindsight
that the jobs and industries lost were replaced by new jobs – mechanics, car plant workers,
petrol station attendants, Top Gear presenters, used car salesmen and many more. Plus the
shift to the new technology, the car, enabled cities to grow, for more efficient distribution of
goods, and much much more, all of which was unimaginable to the majority in the 1860’s, but
which would make modern life impossible otherwise.
Now apply the lessons learned to copyright and copyright technologies. It’s no secret that every
technological advance has been met with staunch resistance by the same industries pushing
this increased term, but every single time their predictions of doom have fallen flat.
It’s time to stop hobbling the new technology to preserve the jobs of the past, and look forward
to create the jobs of the future. The Copyright Design and Patents act, the Digital Economy Act,
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and others are just this generations Locomotive Acts, attempting to preserve the ways of the
old at the expense of the new, and this consultation is like asking
Should the maximum custodial sentence for driving at more than 6mph be set at 1 year?
(The fine was 10 pence under the 1865 Act)
It sounds ludicrous, because it is.

Losses and “Harm” Due to Infringement
Much is often made about the losses and damages to the industries due to copyright
infringement. Almost all of it is complete drivel with no factual basis to it.
Time and again we’ve seen claims of millions, or billions of pounds or dollars lost due to
‘piracy’. Very little of it stands up to inspection. Different organisations make different claims at
various times and even when two organisations make claims about the same time period they
vary wildly.

Case study: BVA v MPAA
In 2006, the MPAA published their much-vaunted LEK studyxxxii, which aimed to
definitively set down some ‘facts’ and ‘statistics’ about piracy. According to that study,
the UK lost $176M in tax due to piracy. Meanwhile, the Industry Trust for IP
Awareness [ITfIPA] (the group behind the ‘you wouldn’t steal a car’ adverts and
‘knock-off-Nigel’) released figures in that campaign stating “It's estimated that £108.5
million is lost annually in unpaid VAT alone.” xxxiii

If you don’t see the problem, it’s because they’re in different currencies. Convert one and
you’ll find that the MPAA says total tax losses is £99.1Million, while the ITfIPA says that the
losses from just one tax, VAT, is £108.5M – £9.4M or about 10% greater. They can’t both be
right, not with such a massive difference.

When asked about this discrepancy, Lavinia Carey of the British Video Association (the
lobby group behind the ITfIPA) claimed theirs was accurate, and the MPAA’s was not.
Likewise the MPAA stood behind theirs.
In reality, both had zero basis in fact. Money is not lost from the economy, its fungible,
and just goes elsewhere. Additionally, after the US Congress had passed anti-piracy
legislation based on the contents of the LEK study, it was revealed that the MPAA
didn’t even bother to check their own studies, and that a key data point used to push
that bill was vastly overblown. xxxiv.

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Loss claims due to piracy/infringement constantly state massive losses and huge damage, but
there’s never any outside view of this. In 1982 MPAA head Jack Valenti gave his famous Boston
Strangler speech on the VCR. In it he laid out 4 points:



that cinema’s would be ruined by people recording films instead of going to the
pictures,
that the ability to fast forward would destroy TV advertising
that since most VCRs were made overseas, the importation of them would destroy the
US trade balance
that making movies is a risky business, and Congress should do anything it can to reduce
that risk.

Of these, exactly zero came to pass. Cinema attendance is actually slightly higher now than
back then, and last time I checked there were still lots of adverts on TV. The fact that there
were few US producers of VCRs was more to do with “intellectual property” enforcement (in
the shape of patents) than anything else, and sure making movies is risky, all businesses are.
Then, as now, it came down to pleas of ‘help us, because we’re famous’ – and we’re back to
privilege.
In the end the US Supreme court ruled against the MPAA, and of surprise to no-one, less than 5
years later US movie studios were showing as much income from VHS sales as from cinema
tickets, and the cinema ticket sales hadn’t changed.
In other words, despite their claims of utter pestilence if the technology was not banned, it
ended up doubling their income.
Meanwhile the MPAA is still claiming massive losses xxxv each year due to piracy, but at the same
time, they’re posting year-on-year record box office figures xxxvi, even while films cost more to
make (the most expensive films of the late 80s and early 90s such as Die Hard 2 and Terminator
2 cost around $100M each, while Furious 7 came in at $190M and the animated Big Hero 6
came in at $165M.
In other words, the losses they claim are more an artefact of the vastly inflated budgets, as well
as extremely dubious accounting practices that have been dubbed ‘Hollywood accounting’.

Hollywood Accounting
One of the biggest talking points they always go back to is that it’s ‘about the people who work
in the industry’, that it’s about the jobs of the small people who do the things we don’t think
about, and that they are the ones that are hurt. It’s a complete lie. I’ve worked in TV and
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movies in both the US and UK, on camera and off, and without fail, I’ve been paid within a week
of filming. Long before the show’s ever been finished, let alone ‘pirated’. These days the only
ones who get paid based on the performance of the end product are the stupid, and that’s
because of Hollywood Accounting.
Hollywood accounting is a method of cooking books so that a film never shows a profit. It’s
similar to the tax evasion methods of Google, Amazon, and Starbucks, where costs are pushed
onto another company which the film’s company has to pay. That means no matter how
successful a film is, it never actually makes a profit. Dave ‘Darth Vader’ Prowse wrote xxxvii in
2011 that he constantly gets letters from Lucasfilm saying that Return of the Jedi has not yet
become profitable, despite being the 15th highest grossing film of all time xxxviii with hundreds of
millions taken in over the past 30 years to put against the $35.5M it cost to make.
If something costs $35.5M to make, and pulls in more than ten times that, and yet still doesn’t
make a profit, then someone’s unable to do maths, and you probably shouldn’t trust any other
figures they give you.
And it’s not just Return of the Jedi, it’s common throughout the ‘creative industry’. Harry Potter
and the Order of the Phoenix drew in some $940M in revenue between 2007 and 2010, yet it
still made a $167M loss from a budget of $150M. That would mean that the actual cost of the
film was $1.1Billion dollars – if they’re so bad at film making that it’s gotten that expensive,
perhaps they don’t deserve to be in business.
It happens in other industries, like music too. Just yesterday (August 16 2015) posted an image
showing balance sheets from 3 shows she did in Germany. For 3 shows, she was paid 500
Eurosxxxix. Meanwhile her managers take a far larger cut, AND docked her money [Fig1].
Recording contracts are more of the same, nothing much has changed since Courtney Love
revealed the big scam of record contracts back in 2000 xl, as the Guardian reported back in
2011 xli, the X-Factor’s touted £1M prize was anything but, and the 2008 winner ended up
owing money to Cowell.
Nevertheless, the narrative of the ‘poor worker’ being hurt by piracy pulls at the heartstrings,
and seems like it might be a legitimate issue, it’s completely fabricated. Any job security issues
are entirely down to those doing the hiring and firing, who are also the ones telling us we
should be looking out for the workers.

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Figure 1

Increased punishment
In pre-revolutionary France, the copyright monopoly was on fabric patterns, the monopoly sold
by the King. The punishment for violating that was Breaking on the Wheel – capital punishment.
It didn’t start out like that of course, it was a minor penalty at first, and eventually ramped up,
and yet it never made a dent, even after 16,000 executions. xlii
Sharing is part of human nature. It doesn’t matter how bad the penalty gets, people will still do
it, just as sodomy laws never eradicated homosexuality. You can’t regulate away basic human
behaviour.

Solutions
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Throughout this all, the assumption has been that we need more punishment. As we can see,
that and most of the other basic assumptions are false.
One of the biggest problems with this topic right now is that it’s similar to the patent medicine
craze of a century ago – everyone’s making claims, there’s no basis to the benefits they tout,
and when their promises don’t pan out, nothing happens.
For the obvious reasons, the punishment terms should NOT be lengthened. However, there is a
significant change that does need to be made to harmonise things.
A false or baseless claim needs to have the same punishment as a valid infringement. At
present the accusations can fly thick and fast, with no consequences, but any accusation is
treated as valid. Until there’s a consequence for false, or deliberately inaccurate accusations,
the laws will continue to be treated with contempt by the population at large, and any sort of
infringement will face greater and greater resistance.
To fix things, there needs to be evidence-based policy as recommended in the Hargreaves
report. This attempt to increase (or ‘harmonise’) penalties, is not based on any evidence at all,
and as such, needs to be rejected.

About
I am a former copyright enforcer for a UK record label. After my label and the BPI refused to
listen on the subject of Napster, I left and did some TV work, including Channel 4’s Spaced,
BBC’s Robot Wars and 3 seasons of BattleBots for US Channel Comedy Central.
Since 2005 I have been working as a P2P researcher, both freelance and as the lead researcher
for Torrentfreak.com. It was my research that uncovered Comcast using hacking techniques to
interfere with people’s use of Bit torrent, which led to the Net Neutrality debate in the US.
I have also been a consultant to bit torrent litigation cases, working as an expert on P2P
systems.
In 2012 I co-edited and co-authored a book – No Safe Harbor xliii - covering privacy, copyright
law, and government accountability, and have helped run an annual panel series on technology,
rights and artistic promotion with a wide array of authors and publishers.

Consultation response
of Andrew Norton

17 August 2015

Page 14 of 15

References and Sources
i

https://torrentfreak.com/undercover-mpaa-agents-expose-alleged-movie-pirates-120521/
http://arstechnica.com/tech-policy/2012/08/private-justice-how-hollywood-money-put-a-brit-behind-bars/
iii
https://torrentfreak.com/surfthechannel-admin-facing-jail-again-over-unpaid-piracy-debt-150608/
iv
http://news.bbc.co.uk/2/hi/uk_news/england/tees/7057812.stm
v
https://torrentfreak.com/why_are_the_ifpi_and_bpi_allowed_071024/
vi
http://news.bbc.co.uk/2/hi/uk_news/england/tees/8461879.stm
vii
https://torrentfreak.com/youre-caught-downloading-dream-pinball-settle-now-or-go-broke/
viii
https://torrentfreak.com/high-profile-high-damages-file-sharing-conviction-was-a-farce-100926/
ix
https://torrentfreak.com/sex-expert-uncovers-shades-of-dahl-in-anti-piracy-witch-hunt-081201/
x
https://torrentfreak.com/acslaw-gay-porn-letters-target-pensioners-married-men-100925/
xi
http://www.which.co.uk/news/2009/07/more-innocent-consumers-accused-of-file-sharing--179504
xii
https://torrentfreak.com/anti-piracy-scheme-a-scam-legal-blackmail-say-uk-lords-100128/
xiii
https://torrentfreak.com/slammed-by-judge-acslaw-not-allowed-to-drop-file-sharing-cases-110208/
xiv
https://www.youtube.com/watch?v=m37QqmBU7Dc
xv
https://www.techdirt.com/articles/20091229/1920547542.shtml
xvi
https://www.eff.org/cases/lenz-v-universal
xvii
http://ktetch.co.uk/2011/12/real-copyright-theft.html/
xviii
http://www.theguardian.com/technology/2011/dec/12/pirates-of-youtube-cory-doctorow
xix
https://support.google.com/youtube/answer/3045545?hl=en
xx
https://torrentfreak.com/youtube-deal-with-universal-blocks-dmca-counter-notices-130405/
xxi
http://arstechnica.com/tech-policy/2011/12/umg-we-have-the-right-to-block-or-remove-youtube-videos/
xxii
https://www.techdirt.com/articles/20120729/02544819867/uk-government-censors-copyright-consultationsubmission-about-how-awful-collection-societies-are.shtml
xxiii
https://www.chillingeffects.org/notices/11039982#
xxiv
https://torrentfreak.com/anti-piracy-co-blames-hack-for-bogus-dmcas-but-theyre-just-sloppy-120307/
xxv
https://torrentfreak.com/anti-piracy-outfits-boost-numbers-with-bogus-takedown-notices-150628/
xxvi
https://torrentfreak.com/google-keeps-rejecting-hollywoods-broad-takedown-requests-150307/
xxvii
https://torrentfreak.com/microsoft-ditches-anti-piracy-partner-after-embarrassing-dmca-takedowns-130927/
xxviii
https://torrentfreak.com/microsoft-wants-google-to-censor-its-wikipedia-page-130927/
xxix
https://torrentfreak.com/travis-defends-fan-from-ifpi-threats-080731/
xxx
http://somuchsilence.com/?p=1257
xxxi
Benson, Bruce L. "The Rise and Fall of Non-Government Roads in the United Kingdom". Street Smart:
Competition, Entrepreneurship and the Future of Roads. pp. 263–264.
ii

xxxii

https://web.archive.org/web/20070128155254/http://www.mpaa.org/press_releases/2006_05_03leksumm.pdf
https://web.archive.org/web/20070817002657/http://www.piracyisacrime.com/bigissue/
xxxiv
http://arstechnica.com/tech-policy/2008/01/oops-mpaa-admits-college-piracy-numbers-grossly-inflated/
xxxv
http://blogs.wsj.com/numbers/putting-a-price-tag-on-film-piracy-1228/
xxxvi
http://www.mpaa.org/wp-content/uploads/2015/03/MPAA-Releases-2014-Theatrical-Market-StatisticsReport.pdf
xxxvii
http://www.slashfilm.com/lucasfilm-tells-darth-vader-that-return-of-the-jedi-hasnt-made-a-profit/
xxxviii
http://www.boxofficemojo.com/alltime/adjusted.htm
xxxiii

xxxix

https://www.facebook.com/sineadoconnor/photos/a.595328070506185.1073741825.246972478675081/9597846
47393857/?type=1&permPage=1
xl
http://www.salon.com/2000/06/14/love_7/
xli
http://www.theguardian.com/music/2011/oct/28/how-x-factor-winners-lose
xlii
https://torrentfreak.com/and-when-even-the-death-penalty-doesnt-deter-copying-what-then-110807/
xliii
http://www.goodreads.com/book/show/13425816-no-safe-harbor-essays-about-pirate-politics

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of Andrew Norton

17 August 2015

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