In the ongoing “content wars”, between those who run sites that offer links to all sorts of content, and the people who don’t always want those links to exist, Vickerman’s conviction marks the conclusion of a remarkable battle. After Google’s announcement this month that it would demote sites with high numbers of copyright complaints, the content owners seem to be getting an edge.
And Fact, long known as a pitbull when it comes to pursuing alleged copyright infringers, now has a victory that it can use to intimidate others who might be thinking about setting up link sites.
What’s so different about Surfthechannel? Nikki Powell, an intellectual property lawyer at the London-based Addleshaw Goddard, points out that Fact did not bring a case under the CDPA; instead, Vickerman was tried under the criminal charge of “conspiracy to defraud” (specifically, to defraud the film companies whose pirated products were being linked to).
“That’s much harder to prove,” Powell says. “You have to show that all the parties have the intention to [financially] harm the plaintiff.” The attorney general’s guidance suggests such cases involve some or all of “several significant but different kinds of criminality; several jurisdictions; different types of victims, eg individuals and banks; organised crime networks”.
Judge John Evans put the case against linking sites more succinctly: “If the producers are unable to exploit the product in which they have invested, then almost certainly the film will not make a profit. Whether made by the major film studios or the smaller production companies, if films fail to make a profit or at the very least break even, then the incentive to produce films diminishes and with it goes what has been a major source of entertainment to millions worldwide for over a century.” That, in a nutshell, sums up the content wars: producers who want to set a price, against consumers who also want to set a price – ideally, zero.
This is the first high-profile successful prosecution for a film industry that says it is now beginning to suffer just as much as the music industry from people putting up links to free material. Internet piracy continues to severely damage the music industry, with forced redundancies and lay-offs directly due to people not getting paid for the service they provide. While the film industry is not currently in the same state of crisis as the music industry, it is heading that way. Internet-savvy users simply prefer not to faff around with TV schedules and record buttons and have come to expect to be able to watch what they want, when they want – for free.
The judge in that case found that Vickerman had uploaded files himself to Web sites and then linked back to them from his site and that his e-mails show that he knew he was not operating lawfully. The judge also noted that Vickerman took steps to hide where he resided and his identity as well as registering the domain outside the U.K. to avoid detection.
In the trial, Vickerman said he could not remember the password to his encrypted computer without access to a keyboard – a claim the judge did not accept. “You were deliberately obstructing the investigation,” Judge Evans said. The judge added that Vickerman showed no remorse but “I’m bound to say that in all the years I’ve worked in this court I have never encountered arrogance of the kind that you displayed during this trial.”