For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Wednesday, 25 July 2007

Courts get tough with infringers, well, almost ...

Well done, LexisNexis Butterworths for picking up these two cases on its subscription-only updates.

R v Blower (a.k.a. Robinson) [2007] EWCA Crim 1775 is a decision of a court that rarely features on this weblog, the Court of Appeal, Criminal Division, for England Wales. It's actually a ruling that dates back to 26 June from a two-man appellate court (Mr Justices Stanley Burnton and Mr Justice Wilkie) on a sentencing issue.

The police searched a car park and Blower's home, where they found a load of counterfeit DVDs, CDs, Playstation discs and computer equipment. Almost a year later the police arrested him when he was trying to sell counterfeit DVDs from the boot of his car; they then found computer towers in another vehicle which had CD drawers that were used specifically for copying disks.

When Blower was eventually prosecuted, after the charges were shuffled around several times, he pleaded guilty to three counts of unauthorised use of a trade mark. A pre-sentence report stated that Blower was someone who regularly committed offences of dishonesty when tempted to do so by receiving an opportunity for easy gain; he had nine previous convictions for 13 offences, including seven of theft, one of fraud and one against property. The offences included a number of handling offences, for one of which he had received a sentence of nine months' imprisonment.

Giving sentence, the trial judge noted that Blower had pleaded guilty at a 'somewhat belated' stage, though he accepted that this delay was not a reflection on Blower himself. He also noted that the man had been involved in three separate incidents over the course of a year. Accordingly he chose a starting point for a custodial sentence of 18 to 24 months. Taking into account the delay, the time that had passed and the plea of guilty, the judge indicated that he would reduce the proposed sentence by 25 per cent. In the event, Blower was sentenced to 14 months' imprisonment on each count, to be served concurrently.

Blower appealed, contending that this sentence was manifestly excessive in all the circumstances. In his view the judge should have given him a one-third, rather than one-quarter, discount on the basis of his guilty plea, and that the judge's starting point of 18 to 24 months was too high.

The Court of Appeal dismissed the appeal. In their view the judge was entitled to state that the pleas of guilty were somewhat late and that, accordingly, credit for pleading guilty would be decreased. It was not an error in principle to allow only a 25 per cent reduction for the guilty plea. The starting point was appropriate and, in all the circumstances, the sentence was not manifestly excessive.

Left: to aid the exercise of judicial discretion, this handy device provide guidance on the reduction of guilty pleas of between 1 and 50%.

It seems to the IPKat that the English and Welsh courts are taking IP crime much more seriously than they used to. The defendant in this case was, relatively speaking, a small-timer. Will the courts take the same view of discounts where guilty pleas are entered in far more complex cases where the saving to the tax-payer is much greater when the pirate hauls up the white flag and surrenders?

Really long sentences here and here


Phonographic Performance Ltd v Gough is a Chancery Division decision on Monday from Mr Justice Mann. PPL - an organisation that collectively administers and enforces rights in sound recordings in the United Kingdom - sent Gough two letters before action in respect of alleged infringement of the copyright in a number of sound recordings. Getting no answer, PPL secured judgment in default of defence. This order, which banned Gough from infringing the claimant's copyright, was sent by PPL's solicitors to Gough himself, helpfully accompanied by an estimate of the relevant licence fees so that Gough could obtain a licence. In December 2006 this order was formally served on Gough, who subsequently engaged in negotiations with a view to obtaining a licence. In July 2007 Gough applied to set aside the judgment against him, saying (among other things) that he never received PPL's application for default judgment.

Mann J dismissed the application. If you're going to set aside a judgment, he said, certain factors had to exist. For example there had to be (i) a defect in the proceedings, (ii) some other reason why the applicant should not be subject to the judgment, (iii) a defence worthy of being tried and (iv) prompt action in making the application. Gough said he had not received certain documents sent to him by PPL, including the application for default judgment. It was most likely that he had received those documents but, even if he didn't, what was his defence to the proceedings going to be?. It was clear on the evidence that Gough had infringed copyright in the sound recordings - indeed Gough even admitted doing so. This being so, he clearly had no defence. Further, Gough had acted far from promptly in making his application, having been served with the order in December 2006 but making no application till July 2007.

The IPKat feels really annoyed that money which PPL and it sister collecting societies could be paying to its deserving members gets wasted by pointless and unmeritorious litigation of this nature. Merpel wonders if Mr Blower and Mr Gough know each other. They appear to have a good deal in common.

No comments:

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':