Quote from article on copyright for designers

Why I am not ashamed of Emmanuel Nimley

Blogged on 21 September 2010

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.

{ 13 comments… read them below or add one }

Stephen 21 September 2010 at 3:41 pm

Agreed. If this is what it takes to save the media industries, they aren’t worth saving. (And if they think this will save them, they are in even bigger trouble than anyone believes).

BTW I clicked through to the Daily Mail article. The journalism may be poor, but the plethora of highly-rated comments are pretty balancing!

rutty 21 September 2010 at 6:46 pm

I wish this was up at Comment Is Free, or whatever, because this article deserves a wider readership.

Fabulous writing. Shocking decision by the courts (you expect FACT etc to act like cocks)

listener 22 September 2010 at 2:02 pm

Nice article! Just as rutty said, it deserves a wider readership.

Adam 23 September 2010 at 2:08 pm

I’ve received a comment from someone who claims to have known Emmanuel Nimley at school (Rook’s Heath, 2000-2004).

According to this person, Emmanuel was occasionally involved in activities that flirted with lawbreaking, not unlike the one that resulted in his conviction. He gives some details, which I won’t reproduce because they’re defamatory. The commenter summarises: “He was an okay student, but very weird.”

I can’t verify any of this. As I pointed out, I don’t know Emmanuel Nimley. It makes no difference to me whether he’s as honest as the day is long or a bit of a chancer; in any case, people can change.

The point stands that this sentence should not have been handed down for this crime, if there was a crime at all.

Crosbie Fitch 28 September 2010 at 7:46 pm

The ‘crime’: the infringement of a privilege established and granted by Queen Anne in 1710 for the benefit of her Stationers’ Company, institutionalising their de facto reproduction monopolies (beholding them to obedience toward the suppression of seditious propaganda). Being a privilege this annuls the right to copy in the majority, to leave it, by exclusion, in the hands of a few - an instrument of injustice. Infringement is thus an individual’s illicit assertion of their natural liberty, their natural right to copy.

The ‘plaintiff”: A publishing corporation, a legal artifice, an unnatural entity, the equivalent of an immortal being whose comprising workforce have a fiduciary obligation to maximise share value - with no duty to mankind, nor to his natural environment. Any manufacture or distribution of a copy reduces the supposedly monopolised market for such and if illicit is thus is a potential lost sale or licensing opportunity.

Let us remind ourselves of the natural crimes Emmanuel might commit against a mortal being: kidnapping/unlawful imprisonment, fraud, burglary/theft, grievous bodily harm. Emmanuel has committed none of them (he did not even attempt to pass off the iPhone footage as if DVD quality - as some scoundrels might). He has only infringed the unethical anachronism of an iniquitous 18th century monopoly - a suspension of individual liberty that should have been abolished at the same time as slavery.

And now his liberty is completely suspended in prison, for ignoring copyright’s manacles upon his cultural liberty and enthusiasm to share his experience with whoever may be similarly interested.

Once upon a time we used to retell the stories that had been read to us, even to re-enact the plays that we had seen performed. This liberty we once had is supposedly to become a fairy tale or myth. And the horror stories of golems subjugating us, making us their compliant servants contentedly consuming ‘content’, these fictions have become real.

There is an obvious and correct solution: cease the recognition of corporations as persons; abolish the privileges of copyright and patent.

Shumaila Khan 3 October 2010 at 7:20 pm

Hi,
I know Emmanuel and I am friends with his mum, it is truly shocking the sentence he has received. He is upset himself and his mum is feeling very helpless. Do you think that we can take legal action to reduce his sentence in some way?

Emmanuel is a lovely guy, ironically he was hoping to make it as an actor in America, hope this does not affect his future prospects.
Great article, Emmanuel’s mum wanted to forward her thanks for your input and support.

Shumaila Khan.

Adam 3 October 2010 at 8:26 pm

@Shumaila: Unfortunately, a criminal record in the UK, particularly involving a custodial sentence, could affect the chances of obtaining a visa to enter or work in the US - just one reason why the use of the criminal law to protect copyright in this way has serious human rights implications.

I don’t know whether Emmanuel has grounds to appeal but will contact you about this.

David "Lefty" Schlesinger 5 October 2010 at 3:01 am

That’s a very overzealous prosecution and a surprisingly unrealistic judge. I would very much hope that Emmanuel would be able to appeal this conviction.

Nicholas Bull 21 October 2010 at 4:29 pm

Mr Nimley was yesterday freed by the Court of Appeal who substituted a sentence of 120 hours unpaid work instead of the 6 months imprisonment.

Crosbie Fitch 21 October 2010 at 6:13 pm

So how much time has he served in jail, a month? How about compensation for false imprisonment (easily nullifying the 120 hours)?

And what of others who come after him? Are they imprisoned first, and let out only if they can afford decent lawyers?

It is good for Mr Nimley that he has been released, but still a terrible indictment of the UK’s derogation of individual liberty by 18th century privilege, and an egregious injustice that he was imprisoned in the first place (or prosecuted at all).

They’ll be imprisoning people for iPhoning in an art gallery next, e.g. “Equipped and loitering with intent to photograph an oil painting” or “Possession of illicit images with intent to supply”.

Laurel L. Russwurm 21 October 2010 at 6:53 pm

This is an excellent article. The point you hit that resonated the most powerfully with me was,

“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.”

That is a terribly crucial part of the story. People don’t really understand what is happening because most of the media has been a compliant accomplice to the travesty of ‘copyright laws’ being enacted around the world. Vested interest anyone?

But then my interest is a little bit different than that of corporations, because I’m a parent first and foremost. One minute of incarceration is too long for what should at most be a civil infringement.

Adam 21 October 2010 at 7:04 pm

Nicholas Bull is Emmanuel Nimley’s defence barrister and kindly provided the above information, which is all that has been released so far; I’ll post more if and when available.

Simon Dalton 19 September 2011 at 7:31 pm

Hi Adam.

Well put. It’s pretty frightening really, how we seem to be hearing of more and more cases of young people being given retributive punishments that bare no relation to the crime. I’m reminded of the case of the guy who made some, clearly humourous, remark on Twitter, threatening to blow something up (was it at an airport? - I can’t remember). We may question his taste in humour, but bad taste isn’t really serious enough to be dealt with by a prison sentence.

In addition to this though, there’s the long term damage to a person’s career, especially in the latter case. As I recall the guy was an accountant, a profession from which you are barred for life if you have a criminal record. So that seems proportionate, doesn’t it? I make some dubious joke on a social network sight and the next thing I know I’m banged up in prison with no job or career to come out to.

The only positive side I can see to this is that, if applied consistently, we may at last see the back of Roy “Chubby” Brown…

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