Late last month, a Wolverhampton judge in the United Kingdom sentenced a man to 33 months in jail for distributing a pirated copy of Fast and Furious 6. Phillip Danks covertly recorded the movie from his seat in the back of the theater, and then posted his recording online under the username “Thecod3r.” His copy was available for free online, where it was downloaded 700,000 times. Additionally, Danks sold several hard copies of his recording for £1.5 each, totaling roughly £1000 profit. At trial, however, Universal Pictures successfully argued that Danks’ activities actually cost the industry over £2.3 million in lost profits.

Despite these profit and damage numbers, the court focused on Danks’ “flagrancy” during sentencing. In a classic case of attempting to grow internet “street cred,” Danks posted on his Facebook, “Seven billion people and I was the first. F*** you Universal Pictures.” This “arrogant and cocksure” attitude was so offensive to the trial judge that he accepted Universal’s estimate of damages and sentenced Danks based on that estimate.

This is not the first time that “flagrant” pirates have suffered harsher penalties in the international courts than other equally severe examples of copyright infringement. Earlier this year, Peter Sunde was arrested in southern Sweden in connection to an earlier unserved sentence of 8 months in a Swedish prison, which was accompanied by a $6.9 million fine for violating copyright law. Sunde, along with several others, founded www.thepiratebay.se, a file hosting website that has been the subject of substantial litigation due to the large number of pirated files that are uploaded by users. Unlike the founders of Napster and Kazaa, who were never brought up on criminal charges in association with copyright violations, Sunde and his co-founders have been brought up on criminal charges several times in regards to copyright infringing material that has been posted on thepiratebay. Sunde’s criminal charge is based on his help in creating the “agnostic” infrastructure of thepiratebay, which, much like Napster and Kazaa, provides a forum for file sharing, without respect to whether the files being shared are copyrighted or not. Sunde is considered by some to be a leader in the development of file sharing, specifically distributed file sharing, and has, since his conviction, been working on new projects including Flattr, a method for site viewers to donate money to site creators.

These convictions, and their severity, seem to point to some punishable conduct other than the actual infringement of copyright. Danks’ Facebook comments were key to the Judge’s imposed sentence of 33 months. These comments, the court held, represented a “bold, arrogant and cocksure offending” which encouraged the court to accept Universal’s estimate of damages. Similarly Sunde, and other founders of thepiratebay, received criminal sentences in relation to their creation of a community and infrastructure for file sharing which functioned without concern to the legality of the files that members of that community uploaded. Similar file sharing sights groups like Napster and Kazaa similarly did not differentiate between legal and illegal uploads, but did not fully embrace the “pirate culture” that thepiratebay clearly embraced. It seems clear that there is some element of “flagrancy” that makes the actions of Phillip Danks and Peter Sunde more severe violations of international copyright than similar infringements by those who are less blatant about it.

US courts are also not opposed to the idea of harsh penalties for copyright infringement. Earlier this year, the court awarded maximum statutory damages for “flagrant” infringement of copyright on cat photos. However, it is unclear whether US courts would be willing to impose diverse sentences on defendant’s simply because of the defendant’s personal, or public, view of copyrights and the companies that own them. Regardless, these are dangerous times to be a pirate.

Wayman Stodart

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One Response to An Ocean Full of Pirates: The Criminal Sentencing of Internet File Sharing

  1. Chris Martucci says:

    Good post. I am sure that the defendant’s demeanor and attitude inevitably affects the decision-maker’s thought process in any proceeding, copyright or otherwise, but it’s interesting to consider whether such things should ever be an actual element of a copyright violation. Should it be relevant whether I downloaded an illegal copy of Photoshop and stayed quiet, or whether I waved it in Adobe’s face? Maybe not. Then again, perhaps the concept of fostering a “pirate culture/infrastructure” creates a real hazard of the property being misappropriated in larger numbers, which in turn can lead to larger lost profits (although I always have doubts on how such lost profits are accurately proven, given that many users that download free content aren’t necessarily would-be customers…but I’m certain that argument is something that comes up in these trials/hearings frequently).