A recent decision of a criminal court in the United Kingdom found an individual guilty of conspiracy to defraud and sentenced him to four years’ imprisonment as a result of copyright infringing activities.1

The Facts

The accused developed a website at surfthechannel.com (“the Site”), which he operated from his home. The Site was designed to make films, television programs and music available to the general public through either live streaming or downloading to a user’s computer. The vast majority of the material available through the Site infringed copyright.

In many cases, the Site enabled users to watch or download mainstream films free of charge and, in some cases, even before the film was released in England or within hours of its release.

The accused launched the Site in 2007, the Site grew rapidly with the assistance of volunteers who were recruited to help with its operation. These volunteers were primarily “link-hunters” who located films on third party websites (often based in China) and posted links to those websites on the Site. In some cases, the link hunters located the actual film files, uploaded them to Chinese sites beyond the jurisdiction of the U.K. and then posted links to those films on the Site.

The evidence established that, notwithstanding the accused’s assertions to the contrary, he knew well that his activities infringed copyright. In addition, the accused presented the Site as an attractive advertising opportunity for businesses, knowing they would reach the large audiences logging onto it.

He also took steps to hide his personal identity, registered the domain name for the Site remotely and set up servers located outside the U.K. that were difficult to trace.

The Site became so popular that it was ranked the 514th most popular website out of hundreds of millions of websites available on the Internet. The prosecution estimated the loss suffered by the film industry resulting from the activities of the accused in the hundreds of millions of pounds. At the same time, the accused made substantial profits from the operation of the Site.

After a lengthy jury trial which lasted over seven weeks, the jury found the accused guilty of two offences of conspiracy to defraud. The presiding trial judge was left to pass sentence.

The Sentence

When considering the above as well as a lack of both cooperation and remorse on the part of the accused, the trial judge sentenced him to four years’ imprisonment on each count, to be served concurrently. The judge noted that the message had to be sent to those inclined to conduct themselves as the accused had, i.e., that they would put themselves at risk of serving a lengthy prison term.

Comment

The intricacies of the criminal process, the standard of proof applicable and the time and expense potentially involved make this a remedy of limited application. Two previous attempts to obtain convictions in similar cases were unsuccessful.  In addition, this may not be the final word since an appeal is possible. However, the existence of a potential sanction of this nature should have a deterrent value to potential facilitators of infringement.