The operator of surfthechannel.com (STC), a website providing links to film and TV content, recently received a four-year prison sentence. Anton Vickerman became the first person in Britain to be jailed for running a site linking to pirate material. The case is unusual in many ways, not least because it was a private prosecution by the Federation Against Copyright Theft (FACT).
In our digital age with online access available to all, fighting copyright infringement is a Herculean task. There will always be someone somewhere in the world looking to infringe an owner's copyright. However, there are various ways to fight the infringement. In the previous case of Twentieth Century Fox Film Corporation & others v Newzbin Limited  (Newzbin 1), a claim for copyright infringement succeeded in bringing about an injunction and the site's closure, and in Newzbin 2 the successful path involved proceeding against the internet service provider, BT. In the STC case, FACT added another weapon to the armoury by successfully pursuing a criminal case for conspiracy to defraud, rather than a copyright infringement claim.
Following such cases as TV Links and Newzbin, the jail term marks a major step in the ongoing 'content wars' – between those who operate websites offering free links to unauthorized copyright material, and producers who want to set a price for their output.
Vickerman set up STC to make films, television programmes and popular music available to the public. The website enabled the public to watch or download mainstream films free of charge, often before or shortly after their release in the UK. The 'vast majority' of the material infringed copyright. STC did not host the video files itself, but pointed visitors to websites out of the jurisdiction, often in China.
Vickerman hired volunteer 'link hunters' to locate files for films on third party sites and post links to those sites on STC, or upload the film files to third party sites before posting links to those sites on STC. Others were hired to check that the links gave access to the films in English.
In March 2009, there were in excess of 5,500 links to movies where copyright was being infringed, and the site rose to be the 514th most popular website. Due to its immense popularity, STC was very attractive to advertisers and by 2009 the site was generating revenue of between £50,000 and £60,000 per month.
Vickerman was arrested and bailed in July 2008; within hours he had secured a new computer, and he carried on operating STC until the eve of his trial in May 2012.
The issues and decisions
The Crown Prosecution Service had declined to pursue a case against Vickerman, but FACT brought a private prosecution. Rather than relying on the criminal provisions concerning copyright infringement, FACT brought a criminal case for 'conspiracy to defraud'. This was far from being an easy option. FACT had to establish that the defendant had intent to financially harm the claimant; it also had to meet the criminal standard of proof, 'beyond reasonable doubt'.
The charge against Vickerman was that he had conspired with others to put the infringing content online and link to it, with the intention of financially harming film producers (as well as cinemas, high street shops and film rental companies) by denying them potential revenues. It alleged that at the same time he was collecting money from adverts placed on the site. FACT argued that revenues of between £52 million and £198 million had been lost by the industry as a result.
Vickerman was aware that a similar website operated by TV Links had been shut down following intervention by FACT, but claimed to believe his site to be lawful. The judge though found that communications between Vickerman and his assistants were contrary to that assertion, as were his attempts to keep his location and personal identity secret. The STC domain name was registered remotely, and there was deliberate off-shoring of servers, to make tracing difficult and try to avoid the reach of the Copyright, Designs and Patents Act 1988 (CDPA). The use of links to websites outside of the jurisdiction was similarly held to be an attempt by Vickerman to remain immune from prosecution.
Although he found that the loss suffered by the industry was impossible to calculate, the judge accepted it would run into millions. He pointed to the huge impact of film piracy, with a likely decline in production if films fail to make a profit. This would also have a consequential impact on all those employed in film production, and on the general public and HM Customs and Revenue. As well as the loss to the industry, the judge took into account Vickerman's personal financial gain from STC.
Noting that the jury had found Vickerman to have engaged in deliberate dishonesty, the judge could not regard Vickerman's conduct as attracting only a minimal penalty. However, he considered that a very long sentence (the maximum being 10 years) was no more likely to impact on Vickerman than a short one.
In sentencing him to four years imprisonment, the judge referred to Vickerman's arrogance during the trial, absence of remorse and refusal to accept that he was doing anything improper. He remarked that "those who are inclined to conduct themselves as you have need to understand that in doing so they put themselves at risk of serving a lengthy prison sentence".
In Newzbin1, the studios successfully sued Newzbin for primary and secondary copyright infringement, where the website allowed members to upload and download a wide range of copyright material including film and TV. However, in cases where sites have only offered indexes of links to pirated material - for example, Oink and TV Links - claims based on conspiracy to defraud have previously been unsuccessful.
FACT has set the bar high with this successful criminal conviction and, as the judge intended, the lengthy prison sentence may serve as a strong deterrent to others thinking about setting up such sites. It will be interesting to see whether this marks a step change in the 'content wars'. It may also bring a new wave of litigation by copyright owners against online infringement, but only where there is clear intent to defraud and the criminal standard of proof can be met.