Copyright infringement as criminal activity: William de Lorenzo v Director of Public Prosecutions (Cth) [2017] VSCA 270

23 October 2017

 

On 31 March 2017, the applicant William de Lorenzo pleaded guilty to making an unauthorised decoder available online and enabling unauthorised access to encoded broadcasts in breach of Copyright Act. The applicant was sentenced in Victoria County Court to 15 months imprisonment, which he sought to appeal.

 

Facts

The applicant was involved in a PayTV piracy network. This piracy network enabled users to access encoded PayTV broadcasts signals through the use of a card-sharing network, where one legitimate set-top box smart-card is used by multiple set-top boxes on which have been installed card-sharing software. These set-top boxes were sold to customers online via platforms such as eBay. The applicant assisted three co-offenders with the piracy network between 2008 to 2015, which at one point had approximately 1,000 customers mostly in Melbourne.

During the course of an investigation into one of the co-offenders, a mobile phone was seized on 1 November 2013. This mobile phone contained a series of messages between the applicant and the co-offender relating to various customer complaints in relation to the piracy network.

On 5 February 2015, the Australian Federal Police executed a search warrant at the applicant’s residence, and seized a number of set-top boxes, card reading devices, smart cards, and smart card readers. The applicant was arrested on 5 February 2015 and bailed.

On 7 October 2016, the applicant gave an interview to the AFP describing criminal conduct by both himself and his co-offenders. The applicant provided a written statement for the prosecution on 22 December 2016 describing his involvement with the piracy network, and on 18 January 2017 agreed to cooperate with the investigation into the co-offenders.

 

The charges and sentencing

On 31 March 2017, the applicant pled guilty to making an unauthorised decoder available online and causing unauthorised access to encoded broadcasts by way of trade in breach of the Copyright Act sections 135ASG and 135AS. The applicant was sentenced to a total of 15 months imprisonment to be released on recognisance release order for 18 months after serving 10 months’ imprisonment

On 17 May 2016, two co-offenders pled guilty to causing unauthorised access to encoded broadcasts by way of trade (Copyright Act s135AS), and were each sentenced to a two-year community correction order.

On 4 August 2017, the third co-offender, who had overall responsibility for the piracy network, entered into a plea bargain and pled guilty to one charge of causing unauthorised access to encoded broadcasts by way of trade (Copyright Act s135AS), and sentenced to a suspended sentence of 18 month’s imprisonment.

 

The appeal

The applicant sought leave to appeal on grounds that the sentencing judge erred in his application of the parity principle (ie., that his sentence was manifestly disparate in comparison to the first co-offenders); that the imposed sentence was manifestly excessive; and that the sentence imposed had a manifest inappropriate relative to the sentence imposed on the third co-offender, who had overall responsibility for the piracy network operation.

The appeal judge refused leave to appeal on the first two grounds, but allowed the appeal on the third ground, and reduced the applicant’s imprisonment to 164 days, being time served, and released him on a recognisance order. The appeal judge took particular note that although the applicant’s role in the piracy scheme was that of a principal facilitator, the applicant made an early plea of guilt and cooperated with the police investigation into his co-offenders. On this basis, the appeal judge reduced the penalty.

 

Final note

Although the majority of court actions over copyright infringement are civil actions (ie., action taken by the copyright owner), as this case demonstrates, it should not be forgotten that the Copyright Act also contains criminal provisions regarding certain types of infringing activity.

For more information see our information sheet Infringement: Action, Remedies, Offences & Penalties. See the link for the full case here: https://jade.io/article/548966?at.hl=copyright