UPDATE: On 20 October 2010, Emmanuel Nimley’s sentence was reduced on appeal to 120 hours of community service. I’m still unconvinced that criminal charges are appropriate to deal with this type of infringement, but this is at least a much more proportionate response.
Emmanuel Nimley is a 22-year-old from Harrow, in northwest London. Although we often hear how black males do less well than average in British schools and are under-represented in higher education, Emmanuel Nimley went to university and graduated with a 2:1.
I’ve never met Emmanuel Nimley. But I teach students sometimes, and mark their papers, and I know what it takes to get from nothing to a third, from a third to a 2:2, from a 2:2 to a 2:1. Lazy, feckless people don’t get 2:1s.
So we know Emmanuel Nimley studied hard to get a good education. Despite this, a year later, like tens of thousands of other graduates since the financial crisis, he was still looking for a job.
And then he did a silly thing. Something he shouldn’t have done, but was easy to do with a gadget he already had in his pocket. After paying for a cinema ticket and taking his seat in the auditorium, Emmanuel Nimley held up his mobile phone and videoed the movie.
Nobody stopped him. So the next time a major film came out, he organised to see it on the first day, and recorded that too. Then he uploaded his recording to a website where users – around half a million at the last count – share illicit copies of movies.
The recording wasn’t very good; the camera, as you might guess, was shaky, and on top of the soundtrack were the sounds of Emmanuel Nimley munching snacks. Still, he did the same with another film the next week.
The week after, he was recording a fourth film on his mobile phone when he was arrested, charged with ten counts of fraud, hauled up in the Crown Court and sentenced to six months in prison.
* * *
Emmanuel Nimley is the first person in the UK ever to be sent to prison for recording a film on a mobile phone. He appears to have been the first even to be prosecuted. [UPDATE: The third, according to FACT]. That’s not surprising. In this country, recording a movie in the cinema isn’t a criminal offence.
Like other copyright infringements, it’s a civil matter. If the copyright owner has a problem with what you’ve done, they can sue you. They don’t get to call the police and have you locked up, just because you copied their work.
But this isn’t good enough for self-appointed copyright enforcement organisations such as FACT and the Motion Picture Association of America, who collaborated in the investigation of the Harrow cinema in conjunction with its owner, Vue. Along with the Crown Prosecution Service, they decided to get creative.
Emmanuel Nimley, according to information obtained from the court by The Register, was charged under sections 6 and 7 of the Fraud Act 2006, “Possession etc of articles for use in frauds” and “Making or supplying articles for use in frauds.” That would make sense if he’d sold the recordings to people who believed them to be genuine. (This law is aimed at things like market stalls flogging knock-off designer goods.) But he didn’t.
He was also charged under section 107/1(e) of the Copyright Designs and Patents Act 1998:
A person commits an offence who, without the licence of the copyright owner –
(a) makes for sale or hire [...]
an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work
But Emmanuel Nimley didn’t make an infringing copy for sale or hire. He made it to upload to a website where other users could access it free of charge. There was no selling and no hiring.
Even if Emmanuel Nimley had been guilty of the offences he was charged with, he would have presented no danger to the public. His only victim was a number on the balance sheet of a movie distributor in an imaginary world where unlicensed media sharing didn’t exist.
Yet not only was he convicted, he was sentenced to prison.
* * *
Judge John Anderson said:
Fraudulently making and distribution of copies for whatever purpose and whatever quality has the effect of depriving the film industry of revenue.
“For whatever purpose and whatever quality” is the kind of language bad judges use to justify bad decisions. The purpose and the quality of an unlicensed recording are of crucial significance. If Emmanual Nimley had only played back the movie himself, only a fool would have attempted to prosecute him. If he’d recorded it to feed into a DVD duplicator and produce thousands of discs in fake packaging to be passed off on unsuspecting consumers paying £12.99, he could rightly have expected a severe penalty.
Commenting on the case, FACT told the press:
When something is recorded at the cinema people no longer pay for tickets at the cinema or spend money on the DVDs.
If any evidence exists to support this claim, it will be in a “study” sponsored by FACT or one of its sister organisations. It is, of course, a nonsensical generalisation. Nobody stays home from the cinema because they have the chance to see an almost unwatchably poor copy of a movie on the internet. Nor do they spend money on DVDs of films that they’re not interested enough in seeing to care whether the picture or sound works properly. These activities are not substitutes for each other. There is, as far as I know, no equivalent low-grade licensed product that people cheap enough to waste their time sitting through a low-res bootleg might otherwise have bought.
Different arguments apply to the DVD or even HD-quality copies sometimes found on the same websites. Emmanuel Nimley is not responsible for those copies.
To describe what Emmanuel Nimley did as “fraud” is to stretch the meaning of the word to breaking point. Both in law and in common parlance, “fraud” means obtaining something by deception. Emmanuel Nimley did not deceive anyone and did not obtain anything. As the judge himself said:
I accept that there has been no fraudulent gain for you.
A fraud without a fraud. A cheat without a win. A theft without a loss.
* * *
In the absence of any profit, the prosecution appears to have painted a picture of movie sharing site users competing for status, as if this was a material gain. It is not. For the prosecution, barrister James Shepherd said:
It’s essentially kudos – the nearer to the point of general release and the better the quality the more kudos the user of that site has amongst its users.
This plausible-sounding scenario appears to be an invention. Movies that are uploaded to QuickSilverScreen.com tend to be uploaded by large numbers of users over a period of months from the date of release onwards. More than 50 copies of Alice in Wonderland, the film to which the prosecution paid particular attention, are currently available.
Among these are several versions uploaded less than a week after the release date. Their uploaders, like most users, are still ranked at zero stars. So much for the respect of their peers. Since uploads aren’t listed by date, it’s almost impossible to see who was first. Nor are they rated for quality. “Top Members” rankings list only the number of files uploaded; reaching the leaderboard takes thousands of submissions. Not four.
Emmanuel Nimley’s kudos must have been meagre and short-lived.
On the same day that Emmanuel Nimley was sentenced for copyright infringement, one of Britain’s most senior police officers, Tim Hollis, spoke to the media about another area of the criminal law.
Hollis, chairman of the Association of Chief Police Officers’ drugs committee, said he did not want to criminalise young people caught with minor amounts of substances such as cannabis. A criminal record that could ruin their career before it began was disproportionate, he said.
At the time of writing, there are 337,082 videos posted on QSS. Based on a skim through the listings, almost all of these are unlicensed copies of copyright material. If their suppliers were traced and sentenced on the same basis as Emmanuel Nimley, and allowing for good behaviour, this would represent a total of 18,750 years in prison.
Either you believe that’s proportionate, and society would be well served by those sentences being handed down, or you don’t. And if you don’t, then you must believe that Emmanuel Nimley is the victim of a miscarriage of justice.
* * *
Emmanuel Nimley didn’t fight the charges. He pleaded guilty, presumably on the advice of his brief and because, as he told police,
his family was ‘ashamed’ of him and told him to be honest.
I sympathise with his family. They sound like decent people. And I don’t defend what he did. Everyone knows you’re not allowed to video movies; they put notices up explaining this at the beginning of every showing. The fact that he had nothing to gain from doing it made it all the more foolish. I’m not a fan of the attitude that it’s OK to copy other people’s stuff for free just because you can. As a professional writer and designer, I’m very well aware of the consequences.
And as a concerned and informed citizen and parent, I’m very well aware of what it means to sentence an educated 22-year-old from a decent family to six months in a British prison.
So I am ashamed of the court that offered itself as an instrument of retribution to the morally bankrupt agents of an “industry” that never had much purpose beyond twisting talent into a dollar sign.
I am ashamed of John Anderson, who presumably believed, when fighting in the Falklands, that he was defending Britons’ freedom, but as a circuit judge appears to have lost track of what that meant. No doubt, being of a certain age, he fails to grasp the ubiquity of media sharing and the absence of malice or profit involved. But there can be no excuse for this cruel and arbitrary sentence. The job of the judge is to consider each case properly on its merits. “Whatever” is not good enough.
I am ashamed of the CPS (which is not news) and of James Shepherd, who as a barrister bears responsibility not only for prosecuting each case to the best of his ability, but for upholding justice and serving the public interest. That’s why we have lawyers, and hold them to ethical standards. If we merely wanted them to win, we could populate the courts with double-glazing salesmen; although, in fairness to the criminal bar, they probably wouldn’t turn up for the money on offer.
(Nicholas Bull, for the defence, must also wish he had been able to achieve a better outcome, even in the very difficult circumstance of having a defendant charged under draconian legislation and choosing to plead guilty.)
I am ashamed of my fellow journalists who reported the case and reproduced FACT’s awful crowing without any balancing comment, as if their readers would naturally regard watching unlicensed content on the internet as an exotic pastime for some subculture of technophile scoff-laws. It is not, and their children could be next. That’s the story.
I am ashamed to live in a country whose authorities not only condone but collaborate with the bullying of individuals by corporations; where each new round of legislation penalises and criminalises more of its citizens without even the pretence of a more honourable or pressing motive than hand-waving about the theoretical protection of profit; and where no objection is raised when one person out of thousands is singled out for punishment, merely because they were in the wrong place at the wrong time, as if the internet’s global shifting of the tectonic plates of ownership and control was their own diabolical creation.
And I am ashamed to work in the creative industries and be a copyright owner while organisations like FACT and MPAA trample on the rights of their randomly selected victims in the name of people like me.
But I am not ashamed of Emmanuel Nimley.