The infringement postcode lottery

By Luke Scanlon on August 29th, 2012

Bookmarking and linking are functions so fundamental to the operation of the web that it is hard to imagine being without them. But recently they have been the subject of controversial copyright rulings on both sides of the Atlantic.

Anton Vickerman ran SurftheChannel, a site which provided links to both copyright-infringing and non-copyright infringing content. On August 14, he was given a four year prison sentence for the crime of conspiracy to defraud by a UK court.

Less than two weeks earlier in the US, a similar case was dismissed at a preliminary stage. Copyright owner Flava Works had sought an injunction against the owners of claiming that its featuring of hyperlinks on the site broke copyright law.

The Seventh Circuit Court of Appeals Judge Richard Posner concluded differently, that the owners of the website had not themselves infringed copyright laws by operating myVidster. He found that even though users of myVidster posted links to copyright-protected content in a way that enabled other users to bypass payment walls and deny copyright owners’ payment and access content without permission, the operator of myVidster did not infringe the law by simply providing links and enabling users to bookmark content.

He also found that myVidster could not be viewed as a “contributory infringer” – inferring that they did not facilitate the acts of infringement. The people who made Flava Works’ content available without permission were at the locations to which the site was linked, not on myVidster itself.

While in the SurftheChannel case, Judge John Evans stated in his sentencing order that “the vast majority” of the material made available through SurftheChannel infringed copyright. He ruled that Mr Vickerman was guilty of conspiracy to defraud the film industry as he was the person making copyright infringing videos available. Judge John Evans said:

You [Mr Vickerman] were deliberately acting in a way which was contrary to the interests of their [the Federation Against Copyright Theft (FACT)] membership, making available films in a manner that compromised their absolute entitlement to exploit their products to the full

Judge Posner’s argument in favour of myVidster, on the other hand, centred on the fact that there was no evidence that the owners of the site copied, distributed or communicated any of the offending content.

In Judge Posner’s view the links made available on could only be considered “contact information”, not copyright-protected information. He highlighted that “myVidster doesn’t touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster”.

He concluded that linking and bookmarking itself does not amount to ‘copying’, ‘distributing’ or ‘publicly performing’ a copyrighted work; even allowing for embedding, such as with an iframe, a video hosted elsewhere. For this reason the services provided by the operator of myVidster did not infringe copyright law.

Had there been evidence of the owners of myVidster inviting people to post copyrighted video on the internet without permission or offering inducements so that their users would do so, Posner stated that his judgment would have been different. In those circumstances, the owners may have been considered to have facilitated copyright infringement.

While in the SurftheChannel case, it is not clear from Judge Evans’ sentencing order the extent to which the evidence indicated that Mr Vickerman invited or induced others to upload links to infringing content, although there is some suggestion that he had. It is also not certain what the connection is between these acts and a finding of conspiracy to defraud in relation to copyright infringement in accordance with UK law.

However, it is intriguing to look at what Judge Evans did consider important in determining Vickerman’s case. He stated that:

You [Mr Vickerman] insisted that you couldn’t know if it was infringing copyright, that the studios might have granted right holder licences to the films of which you had no knowledge. That was certainly true and bound to be true if you didn’t bother to check with the copyright owners and check you most certainly didn’t.

It seems that Judge Evans has concluded that Mr Vickerman’s sentence was appropriate and that he acted dishonestly, which is a key element of the crime of conspiracy to defraud. He “didn’t bother to check” whether the links contained on SurftheChannel linked to infringing content.

Article 15 of the E-Commerce Directive prohibits any European Union country from imposing “a general obligation” on online service providers “to monitor the information which they transmit or store”. It also prohibits all EU countries from imposing an obligation on service providers to “actively to seek facts or circumstances indicating illegal activity.”

Judge Evans therefore appears to have based his sentence in reference to an obligation which he personally would impose on Mr Vickerman, but that every EU government is prohibited by law from imposing.

It is astounding that Judge Evans made so much of the fact that Mr Vickerman believed that he did not do anything wrong considering the legal uncertainty of the case. As Judge Posner’s judgment illustrates, there is no agreement between intellectual property law experts that operating a site that hosts links (and not content) is an infringement of copyright law. It seems unduly harsh to take into account a man’s lack of remorse in determining the length of a prison sentence in these circumstances.

That UK and US law can differ on a technical point with the consequence that one person can be imprisoned for four years while others can continue to operate a site in similar circumstances is unsettling. That Judge Evans can make connections between conspiracy to defraud, facilitating copyright infringement by means of linking and a failure by an online servicer provider to monitor the use of his site, within two weeks of the internationally renowned intellectual property law expert Judge Posner coming to the opposite conclusion, is remarkable.

Luke Scanlon is a technology lawyer at the law firm Pinsent Masons