Karaoke hoarder becomes first Scottish file-share convict

Procurator Fiscal:
"Law and honour"

Via the ever-helpful Hector MacQueen comes news of a media release from the other side of Hadrian's Wall, issued earlier today by the Crown Office and Procurator Fiscal Service, Scotland. It reads as follows:

"FIRST PERSON IN SCOTLAND CONVICTED OF ILLEGAL MUSIC FILE SHARING

Anne Muir, 58, has become the first person in Scotland to be convicted for illegally sharing music files online. Muir pleaded guilty at Ayr Sheriff Court last month to a contravention of section 107(1)(e) of the Copyright, Designs and Patents Act 1988. Muir, from Ayr, admitted to distributing £54,000 worth of copyrighted music files by making them available to others via a 'peer-to-peer' file sharing application.

Following an initial investigation by BPI (British Recorded Music Industry) and IFPI International Federation for the Phonographic Industry), a formal complaint was made to Strathclyde Police. Officers subsequently obtained a search warrant for her home at Gordon Street, Ayr, and seized vital evidence, including computer equipment.

This is the first conviction of its kind in Scotland and is particularly significant to the music industry.

District Procurator Fiscal for Ayr, Mirian Watson, said:

"Intelligence gathered by BPI and IFPI revealed that Anne Muir was a prolific user of a particular file sharing network based in the UK. Illegally flouting copyright laws is tantamount to theft and not only deprives legitimate companies and artists of earnings, but also undermines the music industry as a whole. We will continue to work effectively with law enforcement in this area and to apply our robust prosecution policy."

Sentencing has been deferred until 31 May at Ayr Sheriff Court".

The BBC has supplied further details. Muir's lawyer Lorenzo Alonzi is reported as saying that his client, an auxiliary nurse at Ayr hospital, had not used the network for any financial gain, but to build up her self-esteem after suffering from depression for a number of years:

"Mrs Muir was not in any way trying to distribute on a large scale, she had a very big quantity of these files because she was hoarding -- a symptom of a severe obsessive personality disorder that she suffers from. She has, for many years, suffered from bouts of depression, which causes her to have extremely low self-esteem."

Her haul consisted of 7,493 digital music files and, truly depressingly, 24,243 karaoke files.

Much will depend on how the court treats Muir when it comes to the sentencing.  A low sentence will be seen as no more than a slap on the wrist and as a message that it's not worth prosecuting file sharers; a high one will make her into a martyr and can result in poor publicity for the copyright-reliant industries.  The court may have a tough job getting the right balance, particularly if Muir's mental state is a major issue.

Use it or lose it? The Scottish Law Commission reflects on copyright and limitation periods

The 1709 Blog has just heard news from the Scottish academic and amiable IP personality Hector MacQueen that the Scottish Law Commission has just published its Discussion Paper No 144 entitled "Prescription and Title to Moveable Property". This doesn't sound much like anything to do with copyright, but let Hector take up the story:

"In Part 11 it considers the possibility raised amongst many other points in Fisher v Brooker [2009] UKHL 41 [the "Whiter Shade of Pale" case, potted by the 1709 Blog here], namely that under Scots law's Prescription and Limitation (Scotland) Act 1973 non-use of a copyright work for 20 years could lead to the right-holder being unable to enforce the right and indeed losing it altogether. While Lord Hope in Fisher thought this could not be right, there is no provision in the 1973 Act to make the point directly. The Discussion Paper discusses the implications for the problem of orphan works, and suggests that the 1973 Act should have added to it a provision similar to section 39 of the Limitation Act 1980 in England, under which limitation rules do not apply to any right for which a fixed time period is provided by any other enactment, whether passed before or after the coming into force of the enactment in question.
This would apply to the copyright legislation and prevent any possible difference between Scotland and England in the application of copyright law.

One of the difficulties for the Commission is that, so far as it can tell, this suggestion could only be put into effect by the Westminster Parliament. This is because it seems that the amendment would apply only to intellectual property legislation, which is not devolved to the Scottish Parliament under the Scotland Act 1998. One of the things the Commission would like to know is whether section 39 of the Limitation Act 1980 has any application beyond intellectual property legislation. If it does, it might then be possible to say that the Commission's suggestion did not apply only to intellectual property and hence could be legislated upon by the Scottish Parliament. Para 1.12 of the Discussion Paper briefly explains the issues".

Hector adds, and we agree, that it would be very helpful if any of our readers who are expert in English law generally could point the Commission in any relevant direction on this.

Scottish court rules on jurisdiction regarding online infringements

Here's an interesting Scottish decision, from Sheriff Principal Lockhart, in Mackie v Askew which considers jurisdiction in relation to infringement of copyright and moral rights by activities using the internet, with a focus on Article 5(3) of the Brussels I Regulation. In short:

"Photographs had been placed on the internet by Mackie, and Askew had then placed these photographs on her own internet site. The key issue is which of the Scottish Sheriff (lower) courts has jurisdiction, on the basis of Civil Jurisdiction and Judgments Act Order schedules 4 and 8. Scotland is split into a series of sheriffdoms, determined by geography. These courts have limited IP jurisidiction, but can look at copyright cases.

The court made particular reference to the Scottish decision in Bonnier Media Ltd v Gregg Lloyd and Kestrel Trading Corporation (2002 Scot CS 347 (1 July 2002) regarding jurisdiction, domain names and trade mark infringement. The court then held that the action could be raised where the harm is felt -- as well as where the harmful event occurs. Here, the harmful event occurred in the Sheriffdom of Greenock, where Askew is. Harm was felt, however, in the Sheriffdom of Ayr; and it is was therefore permitted for Mackie to raise the action in Ayr.

This note has been kindly furnished by Abbe E. L. Brown (Lecturer in Information Technology Law, University of Edinburgh), who adds:

"This decision is likely to be of key importance for those seeking to raise copyright actions Scotland, and may also be of broader interest regarding article 5(3) and litigation in relation to the internet".

Scottish judge refuses to bar architect's copyright infringement claim

Eagle-eyed Scot-watchers will have noticed that rarest of events, the posting of a Scottish copyright decision on the Scottish Courts website. The decision is that of Lord Bannatyne (Outer House, Court of Session) in Donal Toner v Kean Construction (Scotland) Limited and CRGP Architects and Surveyors [2009] CSOH 105. The decision is difficult for we non-Scots to follow on account of its terminology, but Mark Cruickshank (Maclay Murray Spens) has furnished us with a splendid explanation. he writes:

"Toner alleged infringement of copyright by Kean and CRGP in respect of architectural plans which he had prepared. He argued that he had not been fully paid for his work and that, therefore, there was no implied licence granted to Kean and CRGP to use the plans. He alleged that CRGP had directly infringed copyright by using a substantial part of the plans to obtain an amendment to a planning consent, while Kean had indirectly infringed by constructing a building in conformity with those plans.

Kean and CRGP requested a Debate (ie a hearing on the legal merits of the claim) to argue that Toner's case against them was not competent and that it was neither legally relevant nor specific enough to make out a case and should be dismissed. They raised a number of competency arguments, all of which involved fairly technical issues of law and/or related to compliance with Scottish procedural rules on pleadings. They included the arguments that Toner had no title to sue, that there was no competence to sue more than one defender [that's the term used in Scotland for 'defendant'] in the same action with a separate and independent basis for each claim, and that there were no pleadings setting out the statutory/common law basis for raising the action. In terms of the relevancy/specification arguments, again there were a number of submissions made by the defenders, for example that the damages claimed against each defender amounted to 'double counting', that Toner's case on damages was not properly set out and that it was not possible to sue for damages for copyright infringement when also seeking to affirm the contract or for damages and additional damages under the same pleading claim.

The judge, Lord Bannatyne, took a common sense approach and criticised the defenders' attacks as resulting from taking aspects of the pleadings in isolation rather than reading them in context. Also, for example, on the inclusion of more than one defender in the same action he took the view that the two cases were clearly intimately connected, which pointed to it being in the interests of justice/convenience that the cases both be in the same action. Lord Bannatyne then rejected all of the defenders' arguments and found firmly in favour of Toner.

This sensible decision should discourage such future attempts to knock out cases based on highly technical arguments. This is not the end of the matter, however, and the matter will proceed towards a full trial with Toner having to prove his case of copyright infringement based on the facts".

Many thanks, Mark, for the explanation.