Copyright infringement is a dangerous crime!

It’s piracy week here at AM.com! This story is not necessarily a 100% internet law story (it’s maybe 87.3%) but it really caught my eye yesterday. And I think it does have a bunch of lessons for the internet law fans out there. Some dude in Winnipeg this week pleaded guilty to copyright infringement and got an 18-month sentence and a $20,000 fine. Once you pick your jaw up off the floor, I’ll explain how all of this is possible.

First, I should clarify a few things about the story. The dude is not going to prison, he’ll be under “strict house arrest.” And what got him that? Running a DVD bootlegging operation in his house. Mmm, good irony.

So you may be kind of surprised that copyright infringement can be a criminal act. I’m sure you all assumed that it wasn’t really a “crime”, it was just something that got you sued by a giant media conglomerate. Wrong! It is a crime. Sometimes. And you could go to prison for five years for it! Many companies invest in hiring a trademark attorney to protect their business idea and media companies are no different.

The first thing you should know about crime in Canada is that most of the crimes are listed in the Criminal Code. The second thing you need to know is that there are crimes in other laws besides the Criminal Code. From the the Income Tax Act to the Controlled Drugs and Substances Act to a bunch of other laws in-between, you can find “criminal” provisions about all sorts of stuff. And one of those other laws is the Copyright Act. Let’s take a look at section 42 of the Act, which I assume was what our dude was convicted under:

Criminal Remedies
Offences and punishment

42. (1) Every person who knowingly

(a) makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists,
(b) sells or rents out, or by way of trade exposes or offers for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists,
(c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright,
(d) by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists, or
(e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists

is guilty of an offence and liable

(f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or
(g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

For the non-lawyers out there (and the lawyers who haven’t seen a criminal problem since Bar school), I should explain that there are two types of convictions in Canada, as you can see in (f) and (g) – summary conviction and conviction on indictment. These make the two types of crimes in Canada – summary conviction offences and indictable offences, which are roughly equivalent to the “misdemeanors” and “felonies” you hear so much about on CBS crime procedurals and a thousand Law & Order’s. This copyright infringement crime is the technical third type of crime, which is called hybrid or mixed, meaning you can be convicted either way. So under the worst of this crime, you can go to prison for five years and get fined a million bucks. Yeesh.

The important thing to note about this crime is that it’s really about selling your illegally pirated works. Or distributing them somehow. Does five years and a million bucks sound like a lot for selling some ripped DVDs? For comparison, a first offence for illegally selling guns or ammunition has a maximum of only three years, and no fine. Which is worse?

So what does this have to do with internet law? Well a number of things. First, the RCMP who investigated this found the evidence in the dude’s PayPal account. Second, I presume the source files he burned onto DVDs came from the internet. He advertised the DVDs on internet classified sites. Sure, he “made” the DVDs (section (a) of the crime) in the real world, but his sales (section (b)) were on the internet. So yeah, this is important for internet people like you and me.

Now, I am sure you are saying to yourself “great, I don’t sell my illegally downloaded copy of The Hunger Games I got from The Pirate Bay, so I’m cool.” Not so fast! Let’s take a look at that subsection (c) again:

(c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright,

Now in case you don’t know, when you torrent something, at the same time you are downloading, other people are also downloading from you. That’s the way torrents work (read section 2.2 of my Masters Thesis for a good explanation, or as a sleep aid). Thus, maybe you are “distributing” an infringing copy. And also maybe, it is prejudicially affecting the owner of the movie’s copyright. Hmmm.

Look, don’t panic, I am sure no Crown Prosecutor or RCMP investigator is wasting their valuable time with the likes of you, individual downloader. I’m just saying it’s theoretically possible. DESTROY THE EVIDENCE. BURN THE TAPES!!!! Err, DON’T BURN THE DVDs!!!!

Copyright infringement – the crime of the century.