Nigerian Copyright Commission v. Engineer Christopher E. Edolo

Nigerian Copyright Commission v. Engineer Christopher E. Edolo

Case Information

Field	Details
Citation	NIPJD/FHC/2003/89C/2003
Case Name	Nigeria Copyright Commission v. Engineer Christopher E. Edolo
Court	Federal High Court of Nigeria
Judicial Division	Kaduna Judicial Division
Judge	Hon. Justice A.M. Liman
Date of Judgment	February 6, 2003
Charge No.	FHC/KD/89C/2003
Complainant/Applicant	Nigeria Copyright Commission
Accused/Respondent	Engr. Christopher E. Edolo
Area of Law	Copyright Law; Criminal Law; Evidence
Subject Matter	Copyright Infringement, Smart Card Cloning, Possession of Equipment for Copyright Infringement.
Outcome	Accused discharged and acquitted

Overview

The Nigerian Copyright Commission prosecuted Engr. Christopher E. Edolo over allegations involving the cloning of MultiChoice smart cards and the possession of equipment and other items allegedly capable of being used for copyright infringement.

The prosecution relied on electronic devices and other materials recovered from the accused, including digital satellite decoders, a microchip development programmer, smart cards, and computer software. It argued that the materials showed that the accused was engaged in making and selling cloned smart cards.

The accused disputed the allegations. Among other things, he maintained that the equipment and software had legitimate experimental, educational and research uses and challenged the prosecution’s evidence concerning the computer hard disk and the alleged cloning activities.

The Federal High Court considered whether the prosecution had proved each of the three counts beyond reasonable doubt.

Key Issues

The central issue ultimately formulated by the Court was:

Whether the prosecution has proved each of the 3-count charge against the accused person beyond reasonable doubt.

In resolving that question, the Court considered, among other matters:

Whether there was sufficient evidence that the accused made or caused to be made infringing copies for sale, hire, trade or business.
Whether the decoders, microchip development programmer and other items were proved to be contrivances for making infringing copies.
Whether circumstantial evidence was sufficient to establish the alleged smart-card cloning.
Whether the prosecution proved the essential ingredients of the offences charged.
Whether the third count was properly framed and sufficiently particularized.
Whether the prosecution could rely on software and other matters that were not identified in the charge as the alleged contrivances.

Court’s Findings

Count 1 — Making infringing copies

The Court identified the elements of the offence under section 18(1)(a) as involving:

making or causing to be made;
for sale, hire, trade or business;
an infringing copy of a work;
in which copyright subsists.

The prosecution’s witnesses testified that they had received intelligence concerning the cloning of MultiChoice smart cards and were directed to the accused’s residence. However, the person who allegedly told them that smart cards were purchased from the accused did not testify.

The Court consequently regarded the evidence concerning the alleged sale of smart cards as hearsay.

Importantly, the ten smart cards described in the charge as cloned copies were admitted by a prosecution witness to be original MultiChoice smart cards. The prosecution also conceded that no actual cloned smart card was found in the accused’s house.

The Court rejected the contention that the equipment and surrounding circumstances were sufficient circumstantial evidence to establish the offence beyond reasonable doubt. Count 1 was therefore not proved and was dismissed.

Count 2 — Possession of contrivances for infringement

Count 2 concerned the accused’s alleged possession of four MultiChoice digital satellite decoders and a microchip development programmer as contrivances for making infringing copies.

The Court held that the burden remained on the prosecution to establish beyond reasonable doubt that the identified items were contrivances within the meaning of the Copyright Act.

The Court accepted the accused’s explanation concerning the uses to which he put the equipment and found insufficient evidence that the devices were used, or could only be used, for cloning smart cards.

The Court also observed that software found on the hard disk could not simply be substituted for the particular contrivances specified in the charge. The charge itself did not identify those software programs as the contrivances forming the basis of Count 2.

Count 2 was therefore not established.

Count 3 — Possession of infringing copies

The Court found a fundamental problem with Count 3. Although it referred to possession of decoders and programmers, the statutory provision relied upon concerned possession, other than for private or domestic use, of an infringing copy of a work. The Court held that the charge was ambiguous. It did not properly allege possession of an infringing copy as contemplated by the statutory provision.

Again, the ten smart cards recovered from the accused had been admitted to be original rather than cloned or duplicate cards. The Court therefore held that Count 3 could not stand. Alternatively, even if the defect in the charge were disregarded, the prosecution had not produced evidence sufficient to prove it.

Decision

The Federal High Court held that the prosecution failed to discharge the burden of proving the charges against the accused beyond reasonable doubt. The accused, Engr. Christopher E. Edolo, was discharged and acquitted.

The Court further ordered that the exhibits tendered in the proceedings be released to the accused after expiration of the period allowed for appeal.

Significance of the Decision

This decision is useful in Nigerian copyright law because it demonstrates the evidential burden involved in a criminal prosecution based on alleged technological copyright infringement. The mere possession of equipment or software capable of having an infringing use does not, without sufficient evidence connecting those items to the statutory offence charged, establish criminal copyright infringement. The prosecution must prove the essential ingredients of the particular offence beyond reasonable doubt.

The decision is also significant for the drafting of criminal copyright charges. The prosecution cannot rely at trial on equipment, software or conduct materially different from the particulars stated in the charge. Where the statutory offence concerns possession of an infringing copy, a charge framed merely around possession of equipment or other contrivances may not satisfy the statutory requirements.

JUDGMENT

(Delivered by A.M. LIMAN, J)

The accused was arraigned on the following 3-Count Charge:-

COUNT ONE

That you Engr. Christopher E. Edolo “M” of 28 Grays Lane Badeko, Kaduna State, on or about the 7th June 2001 around Grays lane Kaduna State did make or caused to be made for sale, hire or for the purpose of trade business infringing copies of works in which Copyright subsist by broadcast in favour of Multi-choice Africa to wit the cloning of ten (10) smart cards without the consent or authorization of the copyright owners and thereby committed an offence contrary to and punishable under section 18 (1) of the Copyright Act Cap 68 Vol. V laws of the federation of Nigeria 1990 (as amended).

COUNT TWO

That you Engr. Christopher E. Edolo “M” of 28 Grays Lane, Badeko, Kaduna, Kaduna State, on or about the 7th June 2001 around Grays lane Kaduna, Kaduna State of Nigeria within the Kaduna Judicial Division of the Federal High Court of Nigeria has in your possession four Multi-choice Digital Satellite Decoders and one Micro-chip development programmer being contrivance for the purposes of making infringing copies of work in which copyright subsist by Broadcast in favour of Multi-choice Africa, without the consent or authorization of the copyright owners and thereby committed an offence contrary to and punishable under section 18 (1) of the Copyright Act Cap 68 Vol. V laws of the Federation of Nigeria 1990 (as amended).

COUNT THREE

That you Engr. Christopher E. Edolo “M” of 28 Grays Lane, Badeko, Kaduna, Kaduna State on or about the 7th June 2001 around Grays lane Kaduna within Kaduna Judicial Division of the Federal High Court of Nigeria had in your possession four Multichoice Digital Satellite Decoder, one Micro-chip development programmer and Four other programmers being contrivances for the purposes of making infringing copies of works in which Copyright subsist by broadcast in favour of Multi-choice Africa, without the consent or authorization of the Copyright owners and thereby committed an offence Contrary to and punishable under section 18 (2)(e) of the copyright Act Cap 68 Vol. V laws of the Federation of Nigeria 1990 (as amended).

The accused pleaded not guilty to each of the counts and thus put himself to his trial. In support of the charge the prosecution called 3 witnesses Olusegun Adigun, Frikks Jonker and Jocobus Ellis, who testified as PW 1, PW 2 and PW 3 respectively.

PW 1 testified on the arrest, search and seizure of the property of the accused, the said property, were through the witness tendered and admitted in evidence. They were marked “A” –“W”. The witness stated he was a Copyright Inspector of the Nigeria Copyright Commission and on the 6/6/2001, they conducted an anti-piracy operation in Kaduna which resulted in the arrest of the accused. He said that his office the Nigeria Copyright Commission received a complaint from Multi-Choice Africa that the Smart card of the Company was being cloned by some individuals in Kaduna. Based on the approval given to him by the Director-General, he liaised with Kaduna State Police Command to carry out anti piracy operation in Kaduna. He stated that after carrying out surveillance he, along with a team of policemen and Mr. Yonker of Multichoice, conducted a search in the house of the accused, in presence of his wife. Witness further stated; they discovered that the accused was using his bedroom as the operational base for the cloning of the Multichoice smart card, and that they found one smart card inside one of the decoders. And also they recovered the following items in the bedroom:

A computer monitor Exhibit
CPU Exhibit
Multi-Choice digital satellite decoder – Exhibit
A Sharp Coloured TV “14”
A microchip development program.

Witness also stated that they took inventory of the property seized, which was admitted and marked as Exhibit “A”. According to PW1, these items were taken to NCC’s Office in Kaduna and the following morning the accused came to the office and made statement which was obtained by the witness and the statement was admitted in evidence and marked as Exhibit “B”.

Under cross examination witness stated that he was not familiar with some of the items but was familiar with the following Exhibit C, D, E, F, G, H, J, K, L, S, N, O, W, M, X, and R. Witness admitted that he was not an electronic Engineer, but though he contended the decoders could be used for cloning after manipulation. He explained that he understood this from the training he received from Multi-choice. On how he knew that the accused was using his bedroom as his operational base, witness conceded that his information was from a different source. He described VCD as Video Compact Disk and Exhibit K contains compact discs only.

Mr. Frikks Jonker, PW2 stated he knows the accused. He stated that he was the representative of Multichoice office and was part of the team that raided and searched the house of the accused on the 6/6/2001. Witness explained that they received information that somebody in Kaduna was selling Pirate Smart Card belonging to Multichoice Africa, and with the approval of the NCC two operations were carried out, one in Kano and the other in Kaduna. In Kaduna, the witness stated, they went to a business address in town, with the NCC agent and the police, and they discovered that is not the actual distribution point of pirate smart card, but the owner of the business co-operated with the police and pointed to where he himself had obtained a pirate smart card in the past. Consequentially, the team raided the house, searched and seized some items. The witness made the following explanatory statement concerning the use of some of the items that were recovered;

Smart Card Exhibit L, and multi-choice decoders and a Nokia Decoder and Exhibit “M”, is to program and record smart card, the information in one smart card can be removed and transferred to other smart cards, and the programmer can work with the aid of computer, which has various software applications.

Through the witness an old version of the smart card was tendered and admitted in evidence and marked as Exhibit Y. P.W.2 contended that the fact that the accused purchased Exhibit Y, demonstrated his expertise with DSTV programmers. Witness pointed that in all the 20 anti piracy raids he carried out throughout Africa, there is similar trend in the method used in cloning, which is similar to this case. Witness further explained how multi-choice transmits its programs via satellite by signals which are called foot print and how these signals beams were received through the LNB attached to small satellite dish. And from the LNB the signal beam is transacted into a house via a cable that is connected to the decoder. The decoder is also called IRD, meaning Integrated Receiver Decoder. The IRD, according to the witness cannot work unless the multi-choice smart card is inserted. And by merely inserting card will not make the IRD work. This is because, the subscriber must pay a monthly subscription fee to the multi-choice which the central office in South Africa will communicate with the smart card that money has been received and activation code will be sent to the satellite and the smart card will be activated.

Witness also explained that, where a person intend to clone a smart card, apart from paying the subscription, he could apply the other method of receiving the signal through the dish and the LNB to a Nokia decoder, which is connected, to the computer and those codes can be used to clone multiple cards. Witness stated that he analyzed the computer and that two pieces of software were found in it which are typically used in a pirate …………The one type is to work with Nokia decoder logging all the cards that multi-choice sent out and the other type is to work with the actual programmer, either to programmers to clone the software.

Under cross-examination: witness conceded that the accused is a legitimate subscriber to multi-choice. He is however not aware that there is one subscription for the Children living room, one for the accused bedroom and the other for the living room. Witness stated that when they started in Nigeria they first had a big metal dish called the C – Band which received the satellite signals but later they introduced K – U Band Dish. Witness stated that he was the Regional African Anti Piracy representative Manager, though he admitted that he was not a software Engineer and was not an Electronic Engineer, either. And not even an expert in any branch of electronics. Witness confirmed that the accused who works with NEPA is an Engineer dealing with electricity. Witness said he knows that encryption is also encoding. However, he doesn’t know formatting. Witness stated that multi-choice uses the irdeto encryption technology, which he pointed out was not an efficient encryption system, but the version, which they now have is secure, from piracy point of view, witness is not aware whether the encryption bit is 64 bit or 124 bit; he further explained that encryption is a security element in the broadcast system. Witness asserted that he has the idea of what it takes to break an encryption, which in his view does not require a software engineer to break an encryption, any body can do it, if he has a computer, programmer, a smart card, an IRD and perhaps a TV set, satellite dish and LNB. Witness also asserted that he would be able to know which computer is used in cloning a pirated smart card, because the information will be stored, which will include the hex code and provider ID key, will both be stored in the computer. Witness confirmed that he took photograph of the accused room and through the witness Exhibit “Z”, the financial standard of June 13 2001 at page 37 was admitted in evidence. Witness denied knowledge of any controversy concerning the licence of multi-choice. Witness also admitted that he did not discuss the content of the computer with accused and also the electronic and software expert did not analyze the computer in the presence of the accused.

Under cross-examination witness stated that in the computer there is a large number of codes and provider ID keys.

Answering question from the Court, the witness admitted that they did not show the Exhibit to the accused at any stage. He denied that the equipment were in his possession, but throughout in possession of the NCC.

Further re-examination by the prosecution, witness stated that it is not possible to determine when the codes were created except the time when the software was installed but he did not determine that they were installed.

PW2 was further cross-examined; witness reiterated that there is software in the system for cloning, which he specified as FM Card reader and a logger program and which he claimed are pirate programmers for pirating smart card. Witness booted the computer and opened the FM Code V 2.0, he later closed the FM Card programmer. Witness pointed to the logger dialog box, which he said is called FM Logger V 2. 4. 1. Witness however, admitted that the word read does not appear on the programmer. Witness then explained that the code contained the file, which can be accessed through two methods (1) by the card (2) air waves, whose names are card return code etc. witness does not know when the files were created or modified. He reasserted that he is not an expert. Witness admitted that he met the accused and his Counsel at Hamdala hotel for the purpose of settling the case before it went further. Witness was shown Exhibit L, the smart card and he reaffirmed that the accused had an account with the multi-choice and also that all the 10 cards were originals. Witness admitted that not being an expert would not be able to use Nokia to connect and receive signals; even then he would still have to have LNB. But he had seen clone. Witness finally admitted he could not demonstrate how a system can be connected to clone a smart card and he could neither show that the accused placed anything in the computer. Under re-examination witness stated that the word reader which he used to describe the FM Logger application was his own language.

PW3, Jacobus Ellis, stated that he did not know the accused, that he works for the Company IR DE 70 access system. He is an Engineer. He studied engineering, electrical and electronic at Botchefsdrov University from which he graduated in 1986. That he started his Engineering career in 1985 and has been working on microprocessor systems and has been working for IR DE 70 access for the last 8 years and one of his tasks was to investigate piracy related cases. For the first 4 years, he was on analogue television and for the last 4 years on digital television. Witness stated that he was served with a summons to appear to testify in the matter because last year he received a computer hard drive by multi-choice who commuted the drive by DHL asking him to investigate the content of the information and to verify if they contained information that could be used for pirating. Witness stated that based on his experience he found information on hard drives which could be used for pirating television signals and also he discovered information, which was referred to be information pertaining to a smart card, which his Company provides and sells to operators one of whom is the Multichoice of South Africa. That the information was sent by Email, a copy of which was tendered in evidence. But it was rejected. He was however allowed to refer to it to refresh his memory.

The witness explained the method he employed in his investigation as follows: – order to read the information on the hard drive he had attached it to a computer. With regent to test system, he applied those drive in question and mounted them as drive D. He then installs extension to help him evaluate the software, which in his view, was not an uncommon practice. In the process he found information on the disk, which he found useful in pirating practices. The programmers are FM CLC of various FM version they are FM CLC 122, FM CLC 156.

The system operates in the following manner:-

Digital base television or conditional access system makes photograph and key……………………………………………….. And in general it applies. And on encryption of a key, the witness explained that when they manufacture a smart card, they store a key on the smart card as the secret key, such a key is unique to each smartcard, and for the purpose of control, the key, which is an encrypted copy, is stored in the encryption system. It does not charge the lifetime of the smart card to be able to acquire condition at access or to switch off and on user. Instead, they use another layer of key. Thus, there are two keys, one a secret key the other the central key and the control key is communicated to by the use of digital control system on the smart card, and these two keys have the ability to communicate with each other on monthly basis. Witness pointed out the 1st release of their smart card extract the control key and so used it to view the television for free. Witness asserted that the programs on the hard disk had the ability to read the control key. Witness described the piracy world as quite interesting, that while some people want to make money others want it free, and so, in piracy there are people who publish the information on how to operate system by piracy. That on the hard drive a file named activated V.9 contains information, which can be used to extract the keys from the smart card to enable the pirate view for free.

Under cross-examination, witness reiterated that the hard disk came from the multi-choice Africa. Witness however could not identify from which computer the hard disk was removed. He could not also say whether the hard disk had any connection with the accused at all. He was not in Nigeria sometimes in June 2001. Witness recognized whom he knew for the past 8 years and denied any relationship with Nigeria Copyright Commission and did not copy his report to the Nigeria Copyright Commission on the effect of mounting the hard disk on another system as a slave drive would mean that the system will butt(sic) from the master drive and the configuration will be based on the master drive. Witness denied any knowledge of any pending or impending criminal proceeding, but supposed such a proceeding could be a possibility. Witness admitted that it was possible to check the hard drive without mounting it. Witness knew one Roy Divendal, as operations manager, who was responsible for manufacturing smart card and whose conclusion on the matter he relied on in his investigation.

The witness was shown the content of the hard disk and he pointed out certain additional installation, such as acro read, which he said might have been subsequently installed. He described the function of the acro-read as for the use of reading files and for use supplementally.

In the directory – my document, the witness identified a file K171 in which there is information for use to communicate with Rodendof to access serial of the smart card. Witness confirmed that the information on the screen was the one he investigates.

Witness stated that Acro-read was created on the 20/1/2001. Witness stated that why he used the browser to open the created power was to enable him open files, which would include hidden file and system at the time of his investigation.

The accused testified in his defence. He testified that he is a graduate of Electrical Engineering from the Obafemi Awolowo University in 1980. He is now a protection and control engineer with NEPA. His work included ensuring that the bulk of energy generated in the generality center is safely and effectively delivered to load centers, which are Kano, Kaduna, Sokoto, Maiduguri, Yola etc. He is a member of Nigeria Society of Engineers, a member of IEC on intelligence, and control protection system. Witness alleged that multi-choice is selling digital decoders to consumers in Nigeria. That these decoders employ a power supply unit which uses a switch power mode supply unit. When consumer electronics operate on a very low voltage, the circuitry inside is probably not higher than 12 volts. However they are usually powered from a mains supply which is about 220 volts AC. That the conventional way was normally through a transformer, which performs two primary functions, first, to bring it from 220 volts to 12 volts and secondly to insulate the consumer from the high voltage. The accused contended that his research shows that the multi-choice decoder is inefficient in protecting the consumer from shock as a result of accident, which is usually caused by frequent fluctuations. Witness also discovered that Nokia decoder is more efficient in protecting the system and consumer from shock. The witness tested the multi-choice smart card to test the provisions and the extent to which the consumer could be protected from volts shocks and in the process he accumulated two gigabyte of data. He explained that the idea of software is to measure the quantum of leakage of the current. Witness stated that the result of his research is that the multi-choice smart card breaks down between 100 – 1000 AC volts and it has a current leakage of about 8/10000 ambial. And that by international standard a human being will go into shock at 11/10000. Witness therefore, said he bought nokia for the safety of his family, also, according to accused, he wrote to multi-choice, in good faith informing them of his finding, hoping that they would understand and come up with a solution to their decoder problem, which according to him could be a zener diode across the power rail used by the decoder, which will act as a sacrifice, thereby consuming the destructive energy that would be passing on to the consumer. It was long after this, the accused stated that the NCC came to raid his house. On how he got the smart cards, accused stated that he got them from Lagos at Alaba market. He suggested that those smart cards could be for those who were heavily indebted and who discarded them and were then sold at Alaba market. Accused identified Exhibit L, which contained 10 cards 3 of them belong to him for which he subscribed and the other seven, he bought them at Alaba market. The three were marked L, L-1 and L-2 while the rest were marked L-3 to L-9. Accused stated that at the time his house was raided he did not owe multi-choice and the account was running. The receipt for the payment of that month was admitted in evidence and marked as exhibit A – A. Then the witness recounted the event subsequent to the search of his house and seizure of his property and stated that when he finally, went to the police station where his wife was kept behind the counter he was told that he had stolen multi-choice property. He was granted bail and was later on instruction of the policemen (PW 2 and one Toyin Zubair taken to Hamdala Hotel where he was asked by Mr. Zubair to sign a disclaimer denying writing about multi-choice decoder, which he said he refused. That also he was offered a job in South Africa with ten-fold salary increase, that also he rejected. Accused reiterated that all the 10 smart cards were original and none is clone. Accused said that there is a difference between a software Engineering and Electronic Engineering, and he denied being a software Engineer. He also denied having anything to do with the codes in the smart card and denied being conversant with security software. Accused denied ever being confronted with software programs capable of cloning. He said he had three computers in his house (1) one computer contained datas on result of experiment on multi-choice, which multi-choice took away from his bedroom and the other two computers belong to his children. Witness contended that to the best of his knowledge none of the decoders could be used for cloning. He asserted that Exhibit “C” is not a special TV while Exhibit K (CD ROM) cannot be used for cloning and neither can floppy disc and in fact none of the items brought to Court can be used for cloning. He also asserted that Exhibit “U”, micro processor is an evaluation kit.

Accused was asked to butt(sic) the computer, however, the display of an error reads:

“There is a problem with your display setting. The adapter type is incorrect or the current settings do not work with your hardware.”

And this, the accused’s view was that the computer was tampered with. He admitted that he had a program FM Card in his computer prior to June 6 but denied that the present FM Card in the computer was his own.

The content of the computer, the software and the hard copy were admitted in evidence and marked as Exhibit AC and AC1 respectively. Witness describes the FM as the ordinary FM in the radio except that this is made for the computer. He said he is familiar with Irdeto System, which is based in Netherlands. Accused confirmed that the time when the hard disk was sent to South Africa was when the case started. Accused denied even being confronted with any report of the investigation carried out on his computer. Accused identified the statement he made on the 7th day of June 2001, marked Exhibit B. Witness confirmed his statement that he knows how to clone a smart card, which according to him is a general knowledge that can be derived from journals, from electronic industry. But witness now said he could not clone a smart card. Accused also denied that the items seized from him couldn’t be complete to clone a smart card. Witness said that what he meant was that he understood how to do it but he cannot do it. Accused also asserted that he told the NCC that he did not have pirated software in his computer. That he bought software from vendor. Witness described Alsat as a graphic software while card blaster is converted from analogue to digital which can be used for audio conversion. Accused denied having FM logger in his computer. He stated that Ardeto gold V. 2.0 was for tracking ardeto satellite which broadcast in Ardeto and H.M. K player mp3 musical software, none of them relate to smart card or multi-choice.

Under cross examination, witness stated that he had thousand files in computer; he denied having any file compendium or a file-caved guide for experimenting smart card. He also denied having 18 Ku Band that he has H ACK 1.8 and he admitted having Ms-Dos command in his computer he denied that the Ms-Dos command was installed on the 7/12/2002 he denied having a file called activate V.T1, or new D1E1 but admitted having card blaster in his name for digital converter. He contended that Alsat 2000 has no capacity to reprogram a smart card. Accused agreed that it is possible to copy content of one computer to another and make several copies. Accused was shown Exhibit B, which he admitted he made voluntarily. The accused opined that the nokia decoder has superior picture quality and it has better sound quality and it is safer than the multi-choice decoder. Accused however agreed that he did not hear of anybody killed from shock anywhere. Accused denied ever hearing of a file called “SINE” or the one called “CLONE” EXTRACT. Accused denied any knowledge of FM 2, does not know that it is used for logging on smart card codes. FM 2 and the following files were also admitted and marked accordingly.

Master – Log (V. 1.3 Alph 605 1999) Exhibit AD-4.
FM Calc. V. 12.2 (by Fallnali) Exhibit AD – 6.
FM Logger – V. 24.1 (by Fatmati) Exhibit AD – 7.
Clone Extractor V. 1.4 by Kokalvaris and team Exhibit AD – 8.
Serial Exhibitor AD – 9.
K 171 Exhibit AD – W.
Irdeto Golden V. 2.0.0.2 by the conj …. Exhibit AD – 11.
Hackers Exhibit AD – 12.
Irdeto Details and Mosc Adirahim VII by 007 – 4 Exhibit A – D – 13.

Accused denied knowing anything about AD-4 and about using master logger to choose a paid TV channel alter log on to smart card provider and channel ID key for the purpose of cloning. He also denied knowing that Exhibit A – D5 could be used for cloning smart card, in short, the accused denied knowing all the other programmes can be used for cloning smart card. Accused insisted that his research had nothing to do with extracting keys from smart card but only had to do with finding voltage brokage of his smart card, and this experiment was by him.

PW2, Samson testified as a system engineer, concentrating on hardware. He was asked to open the case …. cover of the computer and from it two hard disk drive, namely Seagate and fujitsu were recovered and were admitted in evidence and marked Exhibit AB 15 and 15A. Witness also removed the personal tuner card and a radio turner from the computer and were marked Exhibit A, B16 and AB16A respectively.

Under cross-examination by Kohol DW2 said he did not go to the University but was trained by Hephzibah Computer Engineers. He said he holds a Secondary School Certificate and was a born again Christian. Witness cannot say when the Exhibits were installed on the system. He also stated that when a file is saved the computer records the date when it was saved but not when a program is installed, the date of installation is not recorded and the Exhibit 15 – 16 are normal components of a computer.

Both Counsel agreed to file written address, which they later adopted.

Mr. Usman, learned Counsel for the Accused, in his written address submitted that certain facts are not in issue, which I understand them within the context to mean not in dispute, and these facts will be addressed later in the course of this Judgment. He also raised preliminary legal issues, which is an attempt to clarify what he described as “confusion” in the application of the word “broadcasting” and the phrases “codes in the smart cards copied to clones” by the prosecution. Counsel then argued that the requirement of proof of the first allegation must or establish ownership or evidence of the contents or the rights to broadcast in the content and also proof of license to broadcast.

On the 2nd allegation, Counsel submitted, the Plaintiff must establish originality in the work or the acquisition of the right as a purchaser or a licencee, while, on the 3rd allegation Counsel submitted that copying of codes is different from infringement of broadcasting rights, these confusion, Counsel submitted stem from misconception of the nature of copyright law. Counsel then made a detailed examination of the evidence adduced by the prosecution and submitted that the said evidence suffered from numerous confusion and misconceptions; he cited examples, amongst which are:-

That prosecution changed focus from proving cloning with certain electronic equipment to establish existence of certain cloning programmes in the computer before the raid.
Dates of installation, of access of creation of programmes, and dates of programme files and of application files were all mixed up.
Prosecution insinuated that accused wrote programmes on the 1st hard disk.
10 smart cards which were tendered as clones, were later admitted to be original.
Prosecution is confused about the true nature of microchip development programmer, which has nothing to do with Smart Card.
The softwares tendered in evidence through DW1 have no probative value, as no evidence of their function or uses was adduced.
Prosecution could not explain why it hid the 2nd hard disk found in the computer etc.

Counsel then claimed that the prosecution made the following false or wrong assumptions, amongst others.

That the hard disk in which allegedly incriminating software was found was installed by the accused.
That decoder normally meant for viewing digital broadcast can be used for cloning.
Microchip development programmes can be used to prepare smart card.

Counsel then formulated the following issues, which he termed “major” for determination.

(i). What exactly is the nature of the offences alleged by the complainant? Is it infringing on copyright as in “broadcast” rights as alleged in the charges or infringing on ownership of the codes contained in the Smart cards as alleged in the evidence.

(ii). Are the unlisted items admissible in evidence.

(iii). Have the ingredients of the offences been proved.

(iv). Who owns the first hard disk from which various documents were printed.

(v). Who installed the various programs allegedly found in the first hard disk.

(vi). Particularly who installed the additional programmes that PW3 said he found in the hard disk which was not one of the programmes he said is in Holland, put another way, who tempered with the evidence to be tendered in Court?

(vii). Can the items tendered be used for cloning?

Counsel in formulating these issues classified them into issues of law and of fact. Nos. I – III are of the law while issues iv – vii are of facts.

On the first issue Counsel submitted that all the evidence adduced are inconsistent with the proof needed to establish the charge, they are entirely speculative, frivolous and ought to be dismissed.

Counsel also contended that the word “Contrivances” is not the same as software. And at any event, the list of the contrivances ought to be clearly stated in the charge. This, according to him has not been done which rendered the charges liable to be dismissed.

The argument on issue No. ii is essentially the same with that on issue No. i.

Issue No. (iii) deals with ingredients of the offence and Counsel examined section 19(1)(c) which deals with cloning of smart card and submitted that no evidence was offered to establish the basic elements of the offence, namely, ownership, or authorship; or licence of the work was not established and the infringement was not established and neither was it proved it was for commercial purposes and finally no proof of original from which cloned copies were made was established.

On counts 2 and 3, Counsel also examined section 181(c) and 182(c) of the Copyright Act and submitted as follows: –

“There was no proof that the items in evidence were contrivances and the accused was in possession of such contrivances.”

In conclusion of this issue Counsel asked the question, could the software be contrivance? And if so he contended that the charges did not list the said software as the contrivances.

On issue of fact: –

That there was serious controversy as to the origin, content of the 2nd hard disk which the accused denied its ownership, controversy which was not settled by the prosecution, and so, it is caught up by the presumption in section 149(d) of the Evidence Act. And two, the testimony of prosecution witness that there was one hard disk was false and should be rejected, rather the Court should come to the conclusion that there was manipulation and tempering of the evidence in the case.

On who installed the various programs allegedly found in the first hard disk, Counsel contended that from the testimony of PW3, it is very clear that the prosecution manipulated the hard disk, and therefore it has no probative value, and ought not to be relied on.

On whether the item tendered in Court can be used for cloning, Counsel urged the Court to prefer the evidence of the accused, who testified as DW1 to the testimony of PW1 and PW2. He pointed out PW3, who testified did not give evidence on the uses of the three items. Counsel finally submitted that the items could not be used for cloning a smart card.

On standard of proof. Counsel stated that the onus is on the prosecution to proof the charges beyond reasonable doubt. But in this case he contended, the prosecution has failed. Counsel also alleged numerous manipulations, doubt and unanswered questions which should be resolved in favour of the accused.

In conclusion he urged Court to dismiss the charges against the accused person.

Mr. Kohol, Counsel for the prosecution after reviewing the evidence of the witness formulated one issue for determination, namely: –

Whether the prosecution has adduced sufficient evidence in this case to sustain all or any of the charges under counts 1, 2 and 3 brought against the accused person?

Counsel then examined the provision of section 18(1)(a), which covers the first count, with which the accused person is charged. Counsel submits the requirement under the section is to prove making of the infringing copies or causing another person to make for commercial purposes. Counsel submitted that sufficient evidence was laid to show that the items found in the house of the accused as a result of a raid were capable and were used in cloning. Counsel however conceded that no actual smart card was found in the accused’s house however, but he argued that material, contrivances and gadgets for cloning were found. It is therefore, the contention of Counsel that there is no doubt, that the accused was engaged in “making” and “selling” cloned smart cards in which copyright subsists. Counsel submitted that the nature of the evidence needed to come to this conclusion was circumstantial. He referred to the cases of:

Kalu v. The State (1993) 6 NWLR (Pt. 308) 385 SC.
Okolo v. State (1993) NWLR (Pt. 282) 425 CA.
A Detulic v. State (1996) 6 NWLR (Pt. 452) 90 CA.
Ikwunne v. State (2000) 5 NWLR (Pt. 658) 550 CA.
Durwode v. State (2000) 15 NWLR (Pt. 691) 467 SC.

On count 2, Counsel also submitted that the accused is guilty of the offence under section 18(1)(c) of the Copyright Act. Counsel posed the question “what was the accused doing with all the gadgets and contrivances for cloning smart cards in the computer and in his house? Counsel argued that irresistibly, the only answer is that the accused was using them to clone and sell multi-choice smart card. Counsel them submitted that even if cloning and selling of smart card was not proved, the possession of gadgets was sufficient to ground conviction under section 18(1)(c) of the Copyright Act. He concluded that the accused was not able to counter the evidence by the prosecution that they were for cloning. He urges the Court to convict the accused in this Court.

On the 3rd count the prosecution conceded that no clone copy of the smart card was found in the accused’s house. Counsel centered his argument on circumstantial evidence, and urged the Court to convict the accused under section 18(2)(c) of the Copyright Act, which is an alternative charge, which in his view has been proved. He relied on the case of Babalola v. State (1989) 4 NWLR (Pt. 115) 264 and section 179 (2) to support the proposition that the Court can convict on alternative offence, if the penalty is not greater than the offence originally charged.

Reacting to the charge of duplicity of the charges by the defence Counsel, Counsel submitted that the contention is misconceived. He explained that the prosecutor has adduced evidence that the multi-choice is the owner of certain broadcasting rights. That multi-choice licence individuals for viewing upon payment of prescribed fees to multi-choice using a decoding device provided by multi-choice to access broadcast. That the complaint is that the accused has been engaged in unlawfully creating and selling devices, which can access the broadcast without paying multi-choice. Counsel argued that cloning and selling of the smart cards which can access multi-choice broadcast constitutes the offence charged under section 18(1)(a) of the Act.

Counsel denied the allegation that the hard disk was removed and tempered with. He contended that the allegation was a feeble defence raised by the accused and a desperate effort of a drowning man which he urged the Court to reject.

On the contention that NCC was not aware that the hard disk has been sent for analysis, Counsel contended that this assertion was not borne by the evidence and should therefore be discountenanced.

In conclusion he submitted that the prosecution has established its case against the accused sufficiently to warrant a conviction and urged the Court to convict the accused person as charged.

Counsel for the accused filed a reply to the prosecution’s address but made submissions on issues I believe are not points of law and it is thus disregarded.

Having reviewed the evidence and the submissions of Counsel in their respective written addresses, and having a careful consideration of the evidence and the surrounding circumstances of the case, I am of the respectful view that the sole issue for determination in this case is as follows: –

Whether the prosecution has proved each of the 3-count charge against the accused person beyond reasonable doubt.

In order to properly treat this issue adequately, it is important to examine each of the offences under which the accused is charged, and then to examine the charges to see whether, they are consistent with the law creating the offence and to finally determine whether sufficient evidence has been adduced to prove the offence beyond reasonable doubt.

Count No. I, charges the accused with making or causing to be made for sale, hire or for purpose of trade or business infringing copies of works in which copyright subsist by broadcast in favour of multi-choice Africa to wit the cloning of Ten Smart Cards without the consent of authorization of the Copyright owners contrary to section 19(1)(a) of the Copyright Act Cap. 68 Vol. V LFN 1990 as amended.

Section 18(1)(a) of the Copyright Act reads: –

“18. Criminal liability.

(1). Any person who:

(a). Makes or causes to be made for sale, hire or for the purpose of trade or business any infringing copy of a work in which Copyright subsist.

The ingredients of this offence in my view consist of the following:

(a): Making or causing to be made.

(b). For sale, hire or for purposes of trade or business.

(c). Infringing copy of a work.

(d). In which copyright subsist.

What was the evidence led in proof of these ingredients:

PW1 and 2 testified that they received intelligence report concerning the cloning of multi-choice smart card and had visited a place where; it was believed the clone smart cards were being sold. But the man had told them they used to buy smart card from the accused person, he directed them to the residence of the accused whereupon they searched and seized equipment which according to the PW2 was used for cloning multi-choice smart cards. The 10 smart cards, which in the charge, were described as cloned copies, were admitted by PW2 as original smart cards of multi-choice. As regards the element of trade or sale or hire, there is no direct evidence to that effect. The man who informed PW1 and 2 about the circumstances and led them to the residence of the accused did not testify. The evidence therefore concerning the selling of smart card by PW1 and 2 is clearly hearsay evidence and under the rule of evidence is inadmissible; see section 76 of the Evidence Act. See also the case of Utteh v. State (1992) 2 NWLR (Pt. 223) 257 SC. The Counsel for the prosecution admitted that much in his written address, but submitted that having regard to the nature of the evidence adduced, it would be appropriate in the circumstances, to admit circumstantial evidence as proof of the offence of cloning smart card for the purpose of trade. Counsel also admitted that no actual clone smart card was found in the accused’s house, but he submitted that the evidence of all the materials, contrivances and gadgets for cloning, leaves no doubt in mind that the accused was engaged in ‘making’ and selling smart cards. This, in view of Counsel, constitutes both direct and circumstantial evidence against the accused. Counsel referred to Kalu v. State (supra), Okolo v. State (supra), Ikunne v. State (supra) and Dur Mode v. State (supra).

With due respect to the Counsel for the prosecution, I am unable to make out the sense of his submission on this point. Where is the direct evidence of an offence under section 18(1)(a)? and is it sufficient to lead circumstantial evidence to prove an offence under the said section?

Section 138(1) of Evidence Act places the burden of proof on the prosecution, which is beyond reasonable doubt. See the case of Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 SC.

In the case of Adio v. A.G. Oyo State, the Supreme Court laid down the rule on the scope of proof beyond reasonable doubt in criminal cases. This standard involves the proof of all the necessary ingredients of the offence. And it is my respectful view that, in proof of the offence under section 18(1)(a) there is the duty on the prosecution to lay before the Court direct evidence in proof of all the essential elements of the offence. I am unable, with respect to agree with the prosecuting Counsel, that merely finding the accused with all the gadgets and contrivances which evidence was led to show that they could be used for cloning, coupled with the evidence of PW1 and 2 about the sale of the smart card, it is sufficient to hold that they are such circumstantial evidence as to lead to an irresistible conclusion that the accused committed an offence under section 18(1)(a). Circumstantial evidence, deals with strong inferences, which leaves no room for reasonable doubt that not only had the accused committed the offence but nobody else did it. See the following cases: –

Amuneke v. State (1992) 1 NWLR (Pt. 217) 338 CA.
Buba v. State (1992) 1 NWLR (Pt. 215) 1 CA.
Okorogba v. State (1992) 2 NWLR (Pt. 222) 244.

In all the cases dealing with circumstantial evidence, where it is upheld as sufficient to ground conviction, it is always the case that an offence has been committed, in cases of murder, there must be evidence of the body, or if the body is in delicti, evidence of the nature to show that the offence of murder is committed must be laid. In other words, opportunity or chance must so close, direct and consistent with other permanent evidence, so that the only reasonable conclusion to draw is that the accused committed the offence. No such circumstances exist and as such it is only reasonable to conclude that count 1 of the charge has not been proved and the charge is accordingly dismissed.

Count 2 charges the accused with being in possession of four multi-choice digital satellite decoders, and one microchip development programmer, being contrivances for the purposes of making infringing copies of works in which copyright subsist by broadcast in favour of multi-choice Africa without the consent or authorization of the copyright owners contrary to section 18(1)(c) of the Copyright Act LFN 1990.

Section 18(1)(c) of the Copyright Act provides as follows: –

“1. Any person who –

(c) Makes or causes to be made, or has in his possession, any plate, master tape, machine, equipment or contrivance for the purpose of making any infringing copy of any such work.”

In proof of the charge, the prosecution tendered so many electronic devices, including 3 units of multi-choice DSTV Decoder, and 1 unit of Nokia DSTV Decoder, 10 pieces of smart cards, microchip development programmer. These are the items mentioned in the charges as contrivances for the purpose of making infringing copies. These are the hardware contrivances.

PW2, in his testimony, stated that other method of receiving signal without payment, was to receive it through the dish, LNB and Nokia Decoder, which is connected to computer and those codes can be used to clone multi-choice cards. PW2 under cross-examination told the Court that there is a software for cloning and he referred to FM card reader and also logger programs which are pirate programs for pirating smart cards. Witness however, admitted that he could not demonstrate how to use Nokia decoder to connect to receive signals but he said an expert could do it. PW3 stated that he found in the hard disk sent to him, software useful for pirating practices and programs are called FM CLC, of various versions. So in simple layman’s language, the sense made out from the prosecutions evidence was that the accused had in his possessions contrivances in the nature of hardware and software mentioned above and admitted in evidence, to be used for cloning smart card with the software in his computer.

The accused in his statement to the Nigerian Copyright Commission on 7/6/2001, admitted being in possession of 4 nos. of digital satellite receivers. He explained how he acquired them. Witness though, later retracted at the trial, his statement that he knew how to clone smart card. He explained that the microchip development programmer was for experimentation and education and not for cloning smart card. And the original smart cards he bought were for research to gauge their level of responses and reaction when excited by computer programs. He however, admitted having in his computer the following software’s programs.

Alsat
Card blaster
Card wizard
M log
En card
Irdeto Gold
V.2.0

Which he denied are pirate softwares. He contended that the programs are used for different experiment and not for criminal purposes.

The question is, has the prosecution adduced sufficient evidence to prove the offence contrary to section 181(b) of the Copyright Act.

In other words, do the items mentioned in the charge constitute contrivance used for cloning smart card?

It is very clear that both Counsel for the parties had each attributed the use of these Exhibits to a purpose consistent with his stand, but it is an established principle of law, that in construing penal statute the Court shall adopt liberal approach to it. See Uwafor v. A.G. of Bendel State.

Secondly, the onus of establishing that the items mentioned in the charge, are contrivances lies on the prosecution, see section 138(2) of the Evidence Act and this onus never shifts until it is proved beyond reasonable doubt see section 138(3) Evidence Act.

I should observe at this stage, that the presence of software programs on the hard disk of the accused for the purposes of pirating or cloning smart card, is not and cannot at this trial be considered because looking at the charge, plainly, the accused has been in possession of (1) four multi-choice digital satellite decoders (2) microchip development program, which charge alleges are contrivances for the purpose of making infringing copies of works in which copyright subsist. There is no indication in the charge that other softwares were also contrivances for the cloning of smart cards. In all criminal trials, where the accused pleads not guilty, the burden of proof is in the prosecution, who must prove the facts that are alleged in the indictment and may prove any other facts, which help to prove those facts. If the prosecution does not give sufficient proof of the alleged facts so as to establish a prima facie case, the case must be withdrawn from the jury and a verdict of “not guilty” directed. See R. v. Stoddard (1909) TLR 612. Therefore, it is the duty of the prosecution to show that these items are indeed contrivances within the meaning of 181(c) of the Copyright Act. I have examined the evidence of the prosecution witness and that of the accused both in his extra judicial statement and in his defence and I am of the firm view that the explanation given by the accused as to the manner he has put to use this items are credible and do not believe the prosecution that they are contrivances for cloning smart card. Neither could PW2 show how these items could be used, nor was any sufficient evidence adduced to show that they could not be used for any purpose other than for cloning the smart card.

If the charge were examined closely, it would appear clearly that no mention is made of Nokia decoder. Yet the testimony of PW2 heavily showed that the reception of signal could be used through the Nokia decoder, which is connected to the computer. An important component in the cloning procedure, namely a computer, whose hard disk was removed to as far as Netherlands for analysis, was not even mentioned in the charge. But be that as it may any of the items mentioned in the charge is capable of being used for several purposes. So to prove that the accused is using the electronic devices for cloning purposes, proof of the fact that the device is in infraction of section 18(1)(a) of the Copyright Act is relevant to prove count 2. The prosecution has already lost count 1 and having done so, cannot succeed in establishing count 2 both counts have not been established and they are accordingly struck out.

On the 3rd count, I think looking at the charge and the section to which it relates, that is section 18(2)(c) of the Copyright Act, it is clear that on the face of it, the charge cannot stand for ambiguity. The count alleges possession of four multi-choice digital satellite decoders, one microchip development programmer and four other programmers being contrivances for the purpose of making infringing copies of works in which copyright subsists by broadcast in favour of multi-choice contrary to section 18(2)(c) of the Copyright Act Cap. 68 Vol. V LFN. But the section 18(2)(c) reads as follows: –

“(2) Any person who –

The charge does not suggest or describe possession of any infringing copy of the work, and at any event, no evidence was laid in support of such a charge. The 10 smart cards found on the accused person were admitted to be original and not duplicate or clone then what does the prosecution want with this charge? See section 251(1), (2), (3) and (4) of the CPA. See Enahoro v. The Queen (1965) NMLR 265. Section 152 of the CPA provides as follows: –

“152. The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom, or the thing, if any in respect of which it was committed as are reasonably sufficient to give accused notice of the matter with which, he is charged.”

This section is in pari materia with section 202 of the CPC. See the case of Kamaye Kojar Mata v. Kano NA (1968) SCOPE 67, Ademisi v. The Queen (1963) 1 ANLR 316. At common law, an indictment for a statutory offence must contain a reference to the section of the statute creating the offence, and must allege with certainty that the Defendant committed or omitted the acts. The commission or omission of which is prohibited by statute, and did so in the circumstances and with the intent mentioned in the statute – See Halsbury’s Laws of England PH 176. I believe the situation at common law is quite analogous to the criminal procedure under our statutes. Accordingly, I am satisfied that the charge against the accused is bad for ambiguity and it ought to be struck out. In the alternative, even if it were not so, no evidence has been adduced to prove the charge as it is framed and accordingly, the charge shall be dismissed.

On the whole it is my considered finding that the prosecution has not been able to discharge the onus placed on it to establish the charge against the accused beyond reasonable doubt and I have no option than to discharge and acquit him, and he is so discharged and acquitted. The Exhibit tendered in Court shall, on the expiration of the date allowed for appeal be released to the accused. This is the order of the Court.