R v Lewis (Christopher)

Date

28 June 1996

Legislation

Keywords

criminal offences; sentencing; copyright offences; custodial threshold; computer software; online distribution; counterfeit software; sentencing

Counsel

I Harris

Solicitors:

unknown

Judge:

Otton LJ; Hidden J; HHJ Crawford QC sitting as a judge of the Court of Appeal

Court:

Court of Appeal (Criminal Division)

Reported:

[1997] 1 Cr App R (S) 208

Summary:

On January 31, 1996, in the Crown Court at Liverpool, Lewis pleaded guilty to an indictment containing 10 specimen counts of infringing articles contrary to s.107(d)(iv) Copyright, Designs and Patents Act 1988. The counts were sample counts covering a period of about three months from October 1993 to January 1994. Each count alleged that on a date, without the licence of the copyright owner, in the course of a business distributed by means of a computer bulletin board, an article, namely a computer game program which was, and which the appellant knew or had reason to believe was, an infringement of a copyright work. The counts were taken to represent a course of conduct of the appellant, who operated a pirate bulletin board on a computer called "the pool". Lewis was the systems operator and named himself the "scavenger". What the business, if we can use that expression, consisted of was an exchange of copyright computer games. Callers would call the appellant with a game which they downloaded on to his computer system. In exchange callers were entitled to upload a game from that system; that is to say he kept a sort of bank into which those interested deposited games and withdraw games. This enterprise was conducted on a relatively large scale.

When on January 17, 1994 the police raided the premises, they found nearly 1,000 games or business programs held on 1,700 disks. Between the dates of the counts in the indictment 934 games were downloaded and 592 uploaded. Not all of these games were in breach of copyright but the vast majority, estimated at 95 per cent, were. The value of each game to the copyright owner was about £40. Accordingly the 990 games would have had a total value of close to £40,000.

The Court of Appeal noted that Lewis' activity was easy to carry out with computer communications, difficult to detect, and represented a substantial loss to the owners of the legitimate copyrights.

Lewis pleaded guilty and was sentenced to a total of 27 months' imprisonment. This was done by the judge by dividing the 10 counts of the indictment into three groups and sentencing the appellant to nine months' imprisonment concurrent on each count in each group but making the three groups consecutive to each other, thus reaching a total of 27 months.

On appeal against sentence Lewis submitted that 27 months was excessive particularly given his previous good character.

Decision:

The Court of Appeal noted that a prison sentence was necessary but felt that a total of 27 months was excessive and that a total period of imprisonment of 12 months would be more appropriate. The Court thus increased each sentence from nine months to 12 months pursuant to s11(3) Criminal Appeal Act 1968 and quashed the sentences of nine months' imprisonment on each count. Each of the imposed sentences was to run concurrent making a total of 12 months imprisonment.

Reviewed 5 April 2011