A national disgrace

After 2 weeks of the Olympics, I’ve been feeling uncharacteristically proud of my country. We generally made an excellent job of the organisation and coverage, and the athletes put in some outstanding performances. And the opening ceremony was fantastic, even if we were the only ones who understood it. But I was brought crashing back to earth by the sentencing in the surfthechannel.com case. There are so many objectionable things in this sorry tale that I will inevitably have to leave some out, but the more I dig into it, the worse it gets. Today, I am embarrassed to be British.

Let’s start with the simple and obvious. A man has been sent to jail for 4 years for hosting a website of links to TV shows and movies, contributed by people who visited the site. Four expletive-deleted years. I won’t list all the heinous things people have done that have attracted lesser penalties –  just read a newspaper – but what an insult to their victims.

His alleged crime was essentially that he did not care whether people who followed these links had the right to view or download the materials they found at the other end of them, and that he made money by putting adverts on his webpages. That’s it. No children were molested, no grannies menaced, no state secrets betrayed. There was only a webpage of links that led to entertainment. The judge appears to have thought that sending him to jail would deter other people from putting up similar websites. It may possibly deter UK citizens, Your Honour, but those of many other nations can and will take up the slack. I should have thought that was obvious.

Then there is the nature of the charge. Mr Vickerman could not be charged with copyright infringement, because he did not duplicate or upload any of the materials in question, as far as we know. Instead he was charged with ‘conspiracy to defraud’, a rather difficult law to explain even for lawyers, but never mind about that. The crucial point is that if he had actually been found guilty of the copyright infringements in question, the maximum sentence would have been only 2 years. If you foolishly told someone where they could buy some cocaine, and they were caught doing so, would you expect to receive double the sentence of either the buyer or the seller? I didn’t think so.

Next, the nature of the prosecution. The Crown, having reviewed the evidence, actually decided not to prosecute Mr Vickerman. Instead he was prosecuted privately by the Federation Against Copyright Theft, something that couldn’t happen in the US (for example). According to comments on this article (I can’t currently find an independent confirmation), FACT admitted in court that it is a private UK company wholly owned by the Motion Picture Association of America. It has no special legal standing or authority, although as we shall see, it enjoys a spectacular level of cooperation from the police. And as though deliberately calculated to annoy an editor, its very name is inaccurate propaganda. ‘Copyright theft’ would be the illegal appropriation of the rights to something. What they are against is copyright infringement, which is quite different. They are also responsible for those ridiculous unskippable adverts on DVDs that are only seen by legitimate buyers, and whose only function is to make you wish you had downloaded the movie instead. Enough said.

According to this article, FACT not only triggered the initial police raid (allegedly by falsely accusing the Vickermans of selling pirated DVDs) but accompanied the police on it, had their own investigator copy data from the computers and participated in the subsequent questioning. The police, having seized various computers and equipment, not only allowed FACT access to them, but even gave them to FACT after the investigation was dropped. Remarkably, FACT then refused to return the Vickermans’ property, on the grounds that they were considering prosecuting them. While a judge initially ruled that the police and FACT were indeed out of order, the Appeal Court subsequently disagreed, apparently uncritically accepting that FACT’s intended prosecution was ‘in the public interest’. I don’t know about you, but I don’t want my country’s police force to work for American film companies. If this is what the law says should happen, we need to change the law.

There is much more: too much to list here. You can read here about the long list of dirty tricks FACT used to get private information about their intended target, including obtaining customer information from BSkyB and Virgin Media, whose regard for your privacy appears non-existent when Hollywood comes asking.

According to Vickerman (whose lengthy account has largely disappeared from the internet, but can still be read here), the judge directed the jury that ‘linking to content knowing that it is infringing copyright is illegal’, thoughtfully adding ‘if I have got the law wrong then don’t worry, ladies and gentlemen of the jury, because a higher court than me will put that right’. If this is confirmed by the public record, Vickerman may have good grounds for an appeal, but it’s not clear who would fund it, since he has filed for bankruptcy.

We might also remember the case of Richard O’Dwyer, currently being extradited to the US under legislation that was supposed to be used only for terrorists, because he ran a very similar website. If Vickerman’s case can be heard in the UK, why not O’Dwyer’s? Answers on a postcard please.

And for a dissection of the ‘copyright maths’ that leads to ludicrous estimates of countless millions ‘lost’ to websites such as these, try Rob Reid’s amusing TED talk The $8 billion iPod.

Ultimately, this whole sordid affair is completely pointless. The MPAA are going after the people whose websites make it easier to find infringing content, because it is not practical for them to prosecute the thousands upon thousands of individuals who upload content every day, just for fun, just because they can. In the long run, this strategy is doomed to fail, but they appear to be hoping that if they can keep the tide at bay long enough, technology will eventually ride to their rescue. This I very much doubt. If, as they assert, there is a problem, it is that the world has overtaken their business model. They need to stop spending untold millions lobbying governments to rescue them, and start thinking of a better approach. In the meantime, the rest of us need copyright laws that actually serve the public interest and that don’t result in ridiculous lawsuits such as this one.

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