The Federation Against Copyright Theft (FACT) recently suggested it could go after people who use ‘pirate’ set-top boxes at home. Such prosecutions are potentially tricky under UK copyright law so chances of success could be slim. However, FACT is actually eyeing the Fraud Act 2006. Could that work?
With the issue of piracy-enabled set-top boxes still making the headlines, the English Premier League (EPL) has emerged as the most likely organization to prosecute sellers of infringing boxes in the UK.
However, last month the Federation Against Copyright Theft, who provide anti-piracy services for the EPL, revealed that mere users of boxes (such as those containing augmented Kodi setups) could be targeted for prosecution sometime in the future.
People who merely stream pirated content into their own homes are difficult to track online. They pose much greater challenges than BitTorrent users, for example, who can lead investigators straight to their door. But for FACT chief executive Kieron Sharp, there are opportunities to find people via non-technical means.
“When we’re working with the police against a company that’s selling IPTV boxes or illicit streaming devices on a large scale, they have records of who they’ve sold them to,” Sharp said.
The suggestion here is that box sellers’ customer lists contain the personal details of people who obtain Premier League and other content for free so, once identified, could be open to prosecution.
With conventional thinking under copyright law, prosecuting a set-top box/Kodi user for streaming content to his own home is a bit of a daunting prospect, not to mention an expensive one. Copyright cases are notoriously complicated and an individual putting up a spirited defense could cause problems for the prosecution. The inevitable light sentence wouldn’t provide much of a deterrent either.
With all that in mind, it appears that FACT is more interested in prosecuting under other legislation.
During an interview with BBC Radio 5 Live’s Chris Warburton this week, Sharp said that people streaming into their own homes are committing a criminal offense, i.e., something that could interest the police and attract a fine or custodial sentence.
“The law has always been the case that people who are doing something illegal, streaming in their own homes, through these devices, are committing a crime. What’s happened recently is that’s been clarified by an EU judge in one case and by a civil judge in another,” Sharp said.
The EU case was BREIN v Filmspeler, which in part determined that people who stream content from an illegal source do so in breach of copyright law. The judge in the civil case was Justice Arnold, who in a UK Premier League blocking case reached the same conclusion.
While it’s now fairly clear that streaming pirate content in the EU is indeed illegal, is a civil wrong, and can be dealt with by suing someone, it’s not immediately clear how that turns into a criminal offense. It wasn’t clear in the interview either, so Warburton pressed Sharp again.
“What is the bit of the law that you are breaking when you’re streaming, how are you committing a criminal act?” he asked Sharp.
“There are various pieces of legislation,” the FACT chief said. “The one we’ve been looking at is under the Fraud Act which would say you are committing a fraud by streaming these football matches through to your television, watching them at home, and not paying for the license to do so.”
At this point, everything begins to slot into place.
For the past several years through several high-profile Internet piracy cases, FACT has shied away from prosecutions under copyright law. Each time it has opted for offenses under the Fraud Act 2006, partly because longer sentences were available at the time, i.e., up to 10 years in prison.
However, earlier this year FACT’s lawyer revealed that prosecutions under the Fraud Act can be easier for a jury to understand than those actioned under copyright law.
With this wealth of experience in mind, it’s easy to see why FACT would take this route in set-top box cases, especially when fraud legislation is relatively easy to digest.
Possession etc. of articles for use in frauds
“A person is guilty of an offense if he has in his possession or under his control any article for use in the course of or in connection with any fraud,” the Fraud Act reads.
To clarify, an ‘article’ includes “any program or data held in electronic form,” which is perfect for infringing Kodi addons etc.
Given the above, it seems that if the Court can be convinced that the person knowingly possessed a pirate set-top box programmed for fraudulent purposes, there could, in theory, be a successful prosecution resulting in a prison sentence and/or a fine.
Obtaining services dishonestly
“A person is guilty of an offense under this section if he obtains services for himself or another….by a dishonest act, and….he [knowingly] obtains them without any payment having been made for or in respect of them or without payment having been made in full,” the relevant section of the Act reads.
There are probably other angles to this under the Fraud Act but these seem to fit so well that others might not be needed. But how likely is it that someone could be prosecuted in this manner?
Sharp reiterated to the BBC that FACT could get the identities of box buyers as part of investigations into sellers, and as part of that “would see what the situation is” with their customers.
“It may well be that in the future, somebody who is an end-user may well get prosecuted,” he said.
But while the possibilities are there, Sharp really didn’t seem that keen to commit to the hounding of stream consumers in the future, and certainly not now. FACT’s strategy appears to be grounded in getting the word out that people are breaking the law.
“[People] think they can get away with it and that’s an important message from our perspective, that they must understand that they are committing offenses, apart from all the other issues of why they should be paying for the legal product. This is something that should be of concern to them, that they are committing offenses,” Sharp said.
The big question that remains is whether FACT and the English Premier League would ever take a case against a regular end-user to court. History tells us that this is fairly unlikely, but if any case did end up in court, it would definitely be hand-picked for best results.
For example, someone who bought a box from eBay would probably be of no real interest, but someone who had extended email exchanges with a seller, during which they discussed in detail how to pirate English Premier League games specifically, would provide a more useful test subject.
And then, when there are two people involved (the knowingly infringing buyer and the seller, who would also be prosecuted) that also raises the question of whether there had been an element of conspiracy.
Overall though, what people probably want to know is whether lots of people are going to get prosecuted for fraud and the answer to that is almost certainly ‘no.’ Prosecutions against the little guy are resource hungry, expensive, offer little return, and tend to generate negative publicity if they’re perceived as vindictive.
A single highly publicized case is a possible outcome if FACT and the EPL got really desperate, but there’s no guarantee that the Crown Prosecution Service would allow the case to go ahead.
“Prosecutors should guard against the criminal law being used as a debt collection agency or to protect the commercial interests of companies and organizations,” recent CPS advice reads.
“However, prosecutors should also remain alert to the fact that such organizations can become the focus of serious and organized criminal offending.”
FACT could, of course, conduct a private prosecution, which they have done several times in the past. But that is a risk too, so it seems likely that education efforts will come first, to try and slow things down.
“Our desire has always been that sports fans, football fans, would pay for the commercial package, they would pay a fee to watch and that is still our position,” Sharp told the BBC.
“But working with our clients and members such as the Premier League and Sky and BT Sports, we have to consider all the options available to us, to put a bit of a brake on this problem because it’s growing all the time.”