It’s been a busy month in the never-ending copyright and information wars. This article looks at the Surf the Channel verdict, and the mysterious disappearance of Vickerman’s statement from the web. It looks at the progress of the legal assault on Kim Dotcom in New Zealand, and establishment of the principle that linking is legal in the USA.
In the UK
On Thursday, @Copyrightgirl and @glynmoody broke the Surf the Channel verdict story, at least to me. The owner/operator of surfthechannel, Anton Vickerman has been sentenced to four years in prison. This may be best reported now at the Guardian, in an article “Surfthechannel owner launches furious attack on anti-piracy prosecution” since Vickerman’s statement has been disappeared from the internet.
There are a number of oddities in this trial, not the least being the charge, “Conspiracy”, and the fact that it was a private prosecution brought by FACT, due to the CPS deciding not to prosecute. Conspiracy charges are pretty discredited because you can be found guilty without having committed an illegal act. In order to bring a private prosecution, the prosecutor need to prove to the court that they are a person of standing, I would expect the burden of proof to being a person of standing in a Conspiracy charge would be higher. FACT would seem to have a good case in arguing that they are people of standing in a Copyright Infringement case, except they own no copyrights, but Conspiracy, really! This is also reported at torrentfreak, in an article “Movie Studios Compiled Scary Private Life Dossier On SurfTheChannel Owner” where they focus on the intrusive and questionably legal fact finding techniques of FACT.
Scarily, Vickerman’s own statement seems to be now unavailable, being neither at his published URL www.surfthechannel.com noron the wayback machine. Vickerman claims his site was an index, that he only had links, he hosted no content and that originally large content providers were paying him to index content.
The sentencing summary by the Judge can be found here…. Among other things it shows how far apart the two views are. Legal precedent and technical common sense means that a search engine, or index site or a single hyperlink, do not “make available”. The suggestion that the content being free is a symptom of illegality is crass, most music and film has been free to air i.e. consumers or fans since the invention of radio.
Arstecnica cover the story comprehensively in an article called, Private justice: How Hollywood money put a Brit behind bars. They do well explaining the private prosecution, the “sponsorship” of law enforcement agencies, but miss the fact that FACT cannot bring civil suit for copyright infringement and need to prove they have standing.
In an article earlier this year, I write about the O’Dwyer extradition ruling which states that it was established, in the UK in the legal case, R vs Rock & Overton. that linking sites have a “mere conduit” defence. This case was reported widely and at Torrentfreak in an article entitled, TV-Links Triumphs With Landmark E-Commerce Directive Ruling. Vickerman stated that the Judge in his summing up got the law on linking wrong.
Judge Evans in the case sentencing summary says,
You pressed on knowing that TV Links had been taken down following the intervention of FACT on the basis that what it had been doing was unlawful.
TV Links won their case. So this is at least the second time that FACT have destroyed a business by legal entanglement. The Judge’s representation of TV-Links site as unlawful is inaccurate. TV Links still exists on the .eu domain. This is done to avoid US ICE seizures; most knowledgeable Europeans fell that their own legal and law enforcement authorities are less likely to do the MPAA’s bidding; it would seem that this is no longer the case in England & Wales. Implying that locating the servers, domains and business activity to avoid jurisdictional supervision and hence demonstrating knowledge of the illegality of the behaviour is also incomprehensible. Every multi-national in the world optimises their geographic and jurisdictional locations for their own interests; England, Sweden and Spain are all in the EU, and thus in a single jurisdiction albeit not the English one.
Moreover, the copyright industry now has a second string to its bow. If linking to infringing material is in fact legal, they seek to prosecute for aiding and abetting or Conspiracy. This is covered on copyright maximalist shill Andrew Orlowslki’s Register Article, “SurfTheChannel Brit movie pirate gets 4 YEARS’ PORRIDGE” if you can cut through his anti-piracy vitriol; it would seem that both O’Dwyer (see here) and Vickerman have suffered from the idea that curating the index makes publishing it a crime. It seems that Judges are developing the legal doctrine that facilitation of copyright infringement is a crime; because it encourages copyright infringement which is a crime. From reading the newzbin judgement, I am of the view that the test is higher than facilitation, it needs to be inducement or procurement. Perhaps I should read the statue?
The value of an index or search engine is different from the value of copyrighted content and any act of maintenance or curation is about creating value in the index. Unlike the newzbin case, neither of these sites received money, nor had a contract with potential infringers. The criminals in these cases are the people who copy the content, and post it on the internet. It is legal to build an index of links. It is a legal right to create and run a business. Earning advertising income from building a web site should not be a crime, nor should it be consider a proxy for copyright holders loss. They can’t earn this income, because they can only monetize their own content portfolio. People go to indexes because they are more comprehensive than a single catalogue. Copyright holders have no moral right to tax the products of others, even a search engine.
The third worrying dimension is the growing privatisation of law enforcement. Both the US and US have strict laws governing the powers and behaviour of public law enforcement officials, who are bound to up hold the law, and of Lawyers who have a duty to act properly. Private actors may not be so constrained, and are solely accountable to their own interests; as is repeatedly shown by the behaviour of the copyright maximalists in describing infringement as theft, their dubiously legal fact finding techniques, the use of agent provocateurs and honey traps. Law enforcement must be accountable to the lawmakers and their voters, not to rich private interests, be they bankers or movie moguls.
If half of what Vickerman said is true, I hope that the new elected Police Commissioner for the North East decides to take a close look at the evidence gathering techniques of the private investigators employed by FACT, that the Police Commission for East Anglia looks at the relationship between FACT and the Bedfordshire Trading Standards office, and that the Information Commissioner looks at Sky’s co-operation with FACT in releasing information.
I also hope someone is watching how much money FACT and other copyright maximalists are spending on the Police Commissioner elections.
In New Zealand
Earlier in this month, the NZ courts show some spine, with the lower court having ruled and Court of Appeal confirming that US authorities must bring all their evidence to court and share it with the defence. The US had been arguing that they only had to prove a case to answer. This story is covered once more at the excellent Torrent Freak, in an article called Kim Dotcom Must Be Allowed To See FBI Evidence Against Him, Court Rules. The US case is now in deep shit, because Kim Dotcom’s arrest has been ruled illegal, by the NZ courts, and that the US law enforcement authorities may struggle to justify terriorial jurisdiction to even the US courts. It seems it’s questionable that any of the US prosecutor’s activity in New Zealand is legal.
More evidence that the public/private pursuit of the so called Pirates is out of control.
In the US
In the US, the 7th Circuit Court of Appeals, they have ruled that linking is legal, and using such links is legal. The ruling is written up by Judge Posner, reported by techdirt, in an article headlined, Judge Posner: Embedding Infringing Videos Is Not Copyright Infringement, And Neither Is Watching Them. It is critiqued at by Eric Goldman in a blog article, called “Video Embedding Site Isn’t a Contributory Copyright Infringer…. There seems little doubt this’ll go to the US Supreme Court, but the Court of Appeal ruled that posting copyrighted material is illegal, but indexing and watching/listening is not! If this stands, the Richard O’Dwyer maybe safe. ARStechnica cover the story in a piece called MPAA “embedding is infringement” theory rejected by court making clear that because viewing infringing material is not infringment, linking to it can’t be either.
This blog, TVShack Extradition Case Tumbling as Seventh Circuit Holds Linking/Streaming is Lawful at Stanford University predicts that this ruling will lead to a collapse in the US DoJ’s pursuit of UK citizen Richard O’Dwyer. They finish the article with
More immediately for Richard O’Dwyer, England has to decide whether it will send one of its citizens to face trial in the U.S. for conduct that has never been criminally prosecuted here before and that at least one Federal Circuit has said, in Flava Works, is lawful.