September 15, 2014

Letter to Commander Head about PIPCU

A letter sent to the City of London Police regarding their Intellectual Property Crime Unit (PIPCU). We've set out our concerns and asked for detailed clarification on the legal basis for their actions.

Our first correspondence with the City of London police on this matter can be read here. More information about PIPCU's activities can be read on their website. The annexes referred to in this letter can be viewed at this link.

Date: 15 September 2014

Dear Commander Head, 

Re: Correspondence to Commissioner Leppard regarding IP crime unit 

Thank you for your letter of 14 January 2014. Please accept my apologies for the delay in responding; we were waiting until we strengthened our legal team. You asked us to outline in more detail the aspects of operational activity that cause us concern. 

Our concerns involve the work of the Police Intellectual Property Crime Unit (PIPCU). At a general level these can be summarised as follows: 

1. Clarity and information as to: 

a)  The legal basis underpinning PIPCU’s activities, in particular the powers that it exercises to prevent, deter and (in particular) disrupt activity that it determines to be criminal. 
b)  The criteria used by PIPCU to determine the existence and extent of apparently criminal activity, and under which provisions of the criminal law 
c)  The existence and nature of any safeguards intended to ensure that PIPCU’s activities constitute a necessary and proportionate exercise of the powers under which it operates 
d)  Whether there is or has been any independent (both of PIPCU and of rightsowners or their representatives) validation of the legal analyses and interpretations on which PIPCU relies in the conduct of its operations 
e)  Whether (and if so how) PIPCU’s determination of the existence and extent of apparently criminal activity in a particular case and the necessity and proportionality of the proposed action is independently validated before action is taken in any particular case. 

Further, since PIPCU is a specialist intellectual property branch of the police it seems to us to be of paramount importance that, to the extent that they may be at all controversial or novel, interpretations of the law adopted or relied upon by PIPCU are made public so that they may be understood, evaluated and challenged if appropriate. This is especially so given PIPCU's focus on the online area, in which the application of copyright law generally, and criminal law in particular, is often uncertain and continues to develop. 

2. Transparency 

As far as we are aware none of PIPCU's activities under Operation Creative are preceded by any application to court or are followed up by any judicial review or supervision. You will know from our letter of 5 December 2013 that in our view such activities should be exercised through a clear and court-based process. 

It is regrettable that PIPCU veils much of its activities in secrecy. Its public utterances appear to focus on general exhortation and the publicising of arrests and convictions, rather than providing specific information that would assist the public to stay on the right side of the law. 

Our concerns in detail 

Our concerns relate to “Operation Creative”, which targets online copyright infringement. 

We understand that PIPCU carries out at least the following activities: 

  1.  Writing to operators of websites believed to be infringing copyright in order to persuade them to correct their behaviour. 
  2.  Asking domain registrars to suspend domains for websites that PIPCU believes are infringing copyright and re-direct the DNS for the domain; 
  3.  Targeting advertisers through use of an Infringing Website List to encourage advertisers to withdraw funding for websites that PIPCU believes are infringing copyright; 
  4.  Replacing advertisements on sites listed on the Infringing Website List. 
  5.  TargetingindividualswhoPIPCUbelievesareinvolvedinspecificcollateralactivities such as providing proxy services allowing access to blocked websites. 


Activity 1 – writing to website operators 

In relation to this activity please can you address each of our points 1(a) to (e) above. 

For point 1(a), please would you identify the specific statutory powers that PIPCU is exercising when performing this activity. Please set out the offences PIPCU relies on when writing to website operators. 

Generally as regards writing to websites, you will be aware that the mere presence of infringing user-posted material or links (User Generated Content or UGC) on a website (even in substantial quantities) is not of itself sufficient to conclude that the operator of a website is infringing copyright, whether civil or criminal. In this regard the hosting protections under the Electronic Commerce Directive are relevant. 

Related to our general point 1(b), what criteria does PIPCU employ to distinguish between (for instance) UGC sites operating a lawful notice and takedown policy and those that PIPCU regards as committing criminal offences? Is it PIPCU's practice to test the bona fides of a UGC site by arranging for takedown notices to be sent before deciding on action? If so, what criteria does PIPCU employ in evaluating the response of the site? 

Does PIPCU provide guidance as to what steps it believes websites should take to 'correct their behaviour' in order not to commit a criminal offence? For instance is it PIPCU's view that a UGC site must implement 'notice and staydown' or proactive monitoring in order to be regarded as operating within the criminal law? 

What consideration does PIPCU give to whether a particular case is more proportionately or otherwise more appropriately addressed by civil action by the relevant rightsowners? What criteria does it employ to determine when a particular case merits the deployment of public resources? 

Activity 2 – domain registrars 

An example of activity 2) is the suspension request issued on 24 September 2013 to EasyDNS Technologies. An article written by the CEO of EasyDNS, Mark Jeftovic, is attached as Annex 1. 

Some reports suggest that PIPCU is also relying in such letters on the Fraud Act 2006 and the common law offence of conspiracy to defraud. Please could you explain whether conspiracy to defraud is included in your letters on a routine basis. 

All the questions that we have asked in relation to Activity 1 are relevant to Activity 2 in terms of identifying websites to request their suspension. We would be grateful for a response to them in respect of Activity 2. 

In addition, since a suspension request is intended to prevent or inhibit the entire activity of the site, a further question of proportionality arises in relation to potential effect on access to legitimate material. Does PIPCU take any steps to try to ensure that the effect on access to legitimate material is minimised? 

Alternatively, if PIPCU takes the view that it is a permissible consequence that access to legitimate material is impeded, what is the legal basis for that view and what criteria does it employ to decide if that would be proportionate in any particular case? 

Will PIPCU release a list of the domains have been suspended as a result of this campaign, and any further domains that are suspended as a result of PIPCU requests? As we have indicated above, the need for transparency in PIPCU's activities carries particular weight where these activities are not the subject of independent judicial authorisation or supervision. 

Further questions about this activity: 

How is PIPCU identifying the domains? 

It has been suggested by others that registrars may be in breach of their Registration Accreditation Agreement with ICANN if they make changes to their customer settings without a legal basis for doing so (Annex 1, page 2, final paragraph). We expect PIPCU would suggest that the legal basis would be registrars' terms and conditions, but this appears to be placing a burden on registrars who may be running legal risks. Does PIPCU believe this is a problem? 

We understand that the registrar in Annex 1 (EasyDNS) initiated a Transfer Dispute Resolution Process against another registrar who had complied with PIPCU's suspension requests so would not let domains transfer to EasyDNS. It appears that EasyDNS was successful and the other registrar was ordered to transfer the domains (see page 6, updates 5 and 6), which means the domains continue to operate despite short term disruption. What is your view on this? 

Does PIPCU make it clear to registrars that they should obey requests such as the request by EasyDNS to the other registrar? Does PIPCU make it clear to domain owners that they have the right to transfer? 

Activity 3 – the Infringing Websites List 

Further detail regarding activity 3) is set out in Annex 2. 

The same questions as for Activity 2 are relevant to Activity 3, since the objective of the campaign is to impede or prevent the activities of the sites in question. We would be grateful for a response to these questions. We note that PIPCU has explained that infringing websites are: “identified by the creative industries and evidenced and verified by the City of London Police unit” (Annex 2, third paragraph). We draw particular attention to our questions 1(d) and (e) above. 

The fact that the IWL is secret is a matter of concern, for all the reasons already discussed. We believe the list should be publicly available because, in our view, understanding which sites have been blocked and why is crucial for public debate and for rectifying mistakes. 

Further questions about this activity: 

What is the standard of evidence required to place a website on the infringing websites list? 

Does PIPCU attempt to get sites suspended at source? 

Is there an appeals process for the operators of websites that are placed on the list? 

Does PIPCU attempt to contact the website owners to gain their responses and justifications? 

What is the justification for not publishing the infringing websites list? 


Activity 4 – replacement advertisements 

A news article regarding activity 3) is attached in Annex 3. 

A particular concern with the replacement advertisements activity is the advertisement stating "Illegal Downloading is a Crime". This conveys the impression that the act of downloading infringing material is of itself a criminal offence. 

We have noted a Twitter exchange in which PIPCU has said, in response to the question what criminal offence was being referred to in the advertisement: "Downloading falls within s.45 of the Serious Crime Act 2007 if it encourages s.107 CDPA 1988 offences". 

This response makes clear that PIPCU is well aware that downloading is of itself not a criminal offence. Downloading copyright material without permission is a civil infringement, but that is a different matter. PIPCU's explanation does not support the statement in the advertisement. 

We consider that the text of this advertisement is misleading. We ask that PIPCU withdraws this advertisement. 


Activity 5 – collateral activities 

A news article regarding activity 5) is attached as Annex 4. In the case of individuals involved in providing proxy services allowing people to access infringing websites, we are again concerned to ensure PIPCU is drawing an appropriate line between criminal and civil infringement. 


From a policy perspective we are concerned in respect of activities 1) to 4) that it appears no UK court has determined that the “infringing websites” are engaged in criminal copyright infringement activity. There is no court order requiring the domain registrars to suspend the domains. It is unclear to us what legal framework is governing PIPCU's activities. In our view, it seems there may be a lack of due process and a risk of undermining the rule of law. 

In our view there is a risk that mistakes may be made in circumstances where police allegations have not been tested before a court of law and where the legal interpretations adopted by PIPCU have not been published or tested. The absence of any judicial process creates a need for transparency and openness. 

We also believe there may be a risk of the “over-blocking” of websites. We are concerned about the impact on the right to freedom of expression of legitimate users of the internet, which includes freedom to receive and impart information. We are also concerned about the potential impact on innovation, as smaller companies running websites may become more risk averse with the knowledge that their domains may be suspended without a court order. 

Overall, we consider that a court should judge whether a website is in breach of the law. Do you believe there is (or should be) a role for the courts in this process? Generally, how do you make sure that the rights of website owners and the general public are fully respected in this process? How would a website owner or a member of the public be able to rectify any mistakes? 

We would be grateful if you could consider and preferably respond to the questions that we have asked above before we meet, so that we can fully understand PIPCU's processes. 


We remain keen to arrange a meeting to explore these issues further. The attendees would be myself and our new legal director, Elizabeth Knight. We would be happy to type up notes of the meeting and we would ask you to confirm their accuracy. 

We look forward to hearing from you regarding a suitable date. 

Yours sincerely, 

Jim Killock
Executive Director, Open Rights Group 


UPDATE: We have since received a reply from Commander Head which can be viewed here.