SOCA shuts down RnBXclusive

SOCA threatens music downloaders with 10 years in jail in anti-piracy crackdown

For a lucky few, the 14th of February brings an annual flurry of romance.  This Valentine’s day however, it was heartache for RnBXclusive as the UK’s Serious Organised Crime Agency (SOCA) shut down its website and its Twitter account fell silent.

The website, rnbxclusive.com, specialised in urban music and the provision of news and other content to a reported two million consumers per month.  It is also alleged to have provided links to copyright infringing R ‘n’ B and hip hop music and videos.  SOCA’s interest was no doubt piqued by the British music industry’s estimate that the site’s activity contributed to losses of £15 million per year.  SOCA clearly regarded infringement of that magnitude as justifying the owner’s arrest and the seizure of the site.  It said the targeted enforcement measures were

part of an operational programme aimed at protecting businesses and the wider economy.

The owner has since been released on bail, though the website remains unavailable.

Fans of RnBXclusive were shocked at the news but SOCA claims that the majority of the content offered was “illegally obtained from artists” and warned that its users could face jail sentences too.  In particular, SOCA placed a warning on the landing page of the website which stated

If you have downloaded music using this website you may have committed a criminal offence which carries a maximum penalty of up to 10 years [sic] imprisonment and an unlimited fine.

That has been criticised by the Open Rights Group, which questioned in particular why the domain name seizure had been handled as fraud rather than rather than copyright infringement.

Loz Kaye of the Pirate Party UK, a political party which advocates copyright and patent reforms, said that “the explicit threat to visitors of the site and take down notice is alarming”.  SOCA said any action against individual downloaders will be taken on a case-by-case basis.

Comment

The case is the latest in a series of enforcement measures being brought by specialist police forces around the world.  In January 2012 the American FBI arranged the arrest in New Zealand of Kim Dotcom, the owner of MegaUpload which provided ‘cyber-locker’ services.  He is accused of facilitating copyright infringement.  The seizure of luxury vehicles, including a 1959 pink Cadillac, from Mr Dotcom’s mansion was almost as dramatic as the films said to have been shared over the MegaUpload network.

An internet traffic analyst, Deep Field Networks, claimed that global internet traffic fell by two to three per cent in the hour following Kim Dotcom’s arrest.  Such a swift decline was a coup and would be regarded positively by content owners.  However, within a day the trade in shared music and films ‘had not decreased much’.  Instead it appears to have shifted quickly away from US-based services to those where stricter privacy laws allow more clandestine activity.  Indeed RnBXclusive has already resurfaced in another guise, no doubt in a more favourable host country.  This must make enforcement bodies question how worthwhile are their efforts; ‘whack-a-mole’ is only fun when the moles are within reach.

Copyright in the Digital Age

The current system of copyright law is almost universally recognised as being unfit for the digital age.  Ad hoc measures which had previously been introduced in response to advances in consumer technology, such as video recorders, are showing their age.  The growth of the internet and bandwidth capacity in the last decade or so has had an affect several orders of magnitude greater than anything before as media industries have been disrupted beyond recognition.  That has focussed attention on copyright law as content owners seek to protect their business models.  Simultaneously however, people have obtained a new freedom to consume and share greater volumes and a broader variety of content.  The fundamental changes imposed upon the creative sector and individuals’ reluctance to give up their newfound liberties are difficult to reconcile.  But one thing is certain: no amount of political reform will put the genie back in the bottle.

One approach is to educate consumers about copyright law.  That would be a simpler task if there was a universal message to send.  Instead, the law varies significantly between countries.  In some respects, such as whether a ‘fair use’ defence applies, it is the difference between an infringing act and a lawful one.  In the UK, copyright follows a test of strict liability: ignorance of the law is no defence.  In some circumstances, that may be too strict, particularly when an ‘innocent’ infringer might receive ten years’ imprisonment for downloading a music track from a website, as per SOCA’s recent warning.

Websites which host copyright infringing content can easily be as sophisticated as those for legitimate businesses, which lends authenticity to the profile of the site.  Superficially at least, RnBXclusive appeared to be legitimate.  It was well-maintained, contained news stories and articles on its specialist topic and engaged with its consumers through social media.  MegaUpload went further and, ironically, launched a full-length music video featuring Will.i.am, P Diddy, Kanye West and several other famous musicians.  Given such celebrity-endorsement, a slick website, full transactional facilities as well as a reward structure, it almost seems rational that a consumer not versed in intellectual property law could be fooled into believing, at least at first blush, that the site is genuine.

The level of confusion around what is permissible was illustrated perfectly in a British Parliamentary debate on copyright reform.  On 7 February 2012, Kevin Brennan, Member of Parliament for Cardiff West said “I have just Googled “Empire State of Mind” by Alicia Keys and Jay-Z, and the first five results offered a free download of that track on Google”.  It appears that Mr Brennan was referring not to illegal and unlawful links to downloads but YouTube videos, which are freely available to stream, rather than download.  That is an important distinction and if MPs do not appreciate the difference and the modus operandi of the internet while debating reform of the law, what hope is there for those less tech-savvy ‘noobs’?

The BBC’s iPlayer and Apple’s iTunes are regarded as official broadcasting services where content can be downloaded by consumers without being threatened with imprisonment.  YouTube offers similar content but also plenty of home-made cat videos too.  However, YouTube also features copyright infringing content.  Its clever algorithms often identify such content but that does not necessarily mean it is removed.  Instead, the content owner may choose to allow advertisements to be displayed during the video and receive a proportion of the revenue.  All of the videos on YouTube and some content on iTunes can of course be ‘shared’ on social media or in an email in a few simple clicks.

Whilst it is refreshing to see content owners monetising infringing digital content through advertising, it does seem to blur the boundaries between what is permissible and what is not.  Such tolerance may serve the person who uploaded the video to justify their actions and undermine the efforts to explain and prevent copyright infringement in the first place.  The ubiquity of sharing and the concept of viral marketing videos, designed to encourage sharing of content further muddies the waters as to what is allowed in law and what is not – why, a consumer might ask, can I share some things but not others?  More importantly, how do I tell an infringing website from a genuine one when they can’t be obviously differentiated by their domain name, the content price, the amount of advertising, the professionalism of the marketing and the transactional facilities?

In the absence of a physical retail location, it is increasingly difficult for the average internet consumer to determine precisely what is a legitimate online music service and what is unlawful.  The idea that a ‘pirate’ website is poorly constructed, unsophisticated and operated by a lone teenager in his bedroom is as disingenuous and outdated as the notion that counterfeit goods are only found in market stalls.  SOCA appears indiscriminate.  As it stands, the law of copyright already stands accused of making criminals of our children and the remix culture for the way the majority of them interact with technology and content.  As the demographic of online consumers grows older, we are at risk of also making unwitting criminals of our technophobic parents and grandparents too.

First published in IP Magazine, May 2012

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