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Sunday, 19 August 2012

No more Channel to Surf as Anton goes to jail

First there was TV Links; then there was TVShack (see Kat Posts here, here and here. Now at last there's Surf the Channel (STC), the latest in a line of cases considering the liability for operators of websites which provide links to unauthorised copyright content such as movies and TV shows. Earlier this week, Anton Vickerman, the former operator of STC, was sentenced to four years imprisonment by His Honour Judge John Evans in Newcastle Crown Court for conspiracy to defraud by facilitating copyright infringement under section 12 of the Criminal Justice Act 1987. He was also disqualified for five years from holding the office of a company director etc or from practising as an insolvency practitioner (see here for the Sentencing Remarks.

In evidence, Vickerman stated that STC was his answer to the absence of a search engine which provided internet users with a convenient and easy means of searching for particular films or TV programmes: he was already aware that TV Links had previously engaged in a similar operation but he believed that he could do better and persevered with STC even though he knew that the TV Links website had been shut down following the intervention of the Federation Against Copyright Theft (FACT).

Vickerman registered the STC domain name remotely and set up servers outside the UK. The first link to a movie was posted on STC on Christmas Day 2007. The site grew rapidly with the assistance of various volunteers whom Vickerman recruited (i) to locate the files for film and television programmes on third party sites outside the jurisdiction (primarily China) and then post links to those sites on STC and (ii) to upload the files for film and television programmes to third party sites outside the jurisdiction (again primarily China) and then post links to the same on STC. In some cases, the links were posted before the film had received a theatrical release in the United Kingdom and, in many cases, within hours or days after that release. By April 2008, there were 40,000 links on STC, of which 2,000 were to movies. By August 2009, there were two million links on STC, of which in excess of 5,500 were links to movies.

Not surprisingly, STC was an internet sensation. It rose to be the world's 514th most popular website. Judge Evans observed in his reasons for sentencing that STC was so popular because ‘it was enabling access to material that millions of users wanted, that for the most part they could not access elsewhere or at least could not access as easily as they could at STC in an area where competition was limited, because it was unlawful’. Also not surprisingly, STC was a very attractive proposition for advertisers who, according to Judge Evans ‘were unquestionably more than willing to enter contracts for the deployment of their advertisements on STC knowing that the adverts would reach huge audiences logging on to the site’. In July 2008, the income from advertising was averaging £10k-£15k for the month and by mid 2009 £50k-£60k. From 2009 to 2011, STC produced a profit of £250,000 from a turnover of just under £1m. However, this dropped off significantly after that, no doubt in the wake of the efforts of FACT and the Motion Picture Association of America (MPAA) to thwart the operation of STC. When copyright owners complained, Vickerman flooded STC with ‘legal’ links to material that had come from rights holder sites and proclaimed that STC had a policy of compliance with take down notices. Judge Evans described such behaviour as ‘engaging in a game of cat and mouse with the industry’ and as having a ‘huge impact’ on film industry by causing it to suffer ‘a loss running into the millions’.

Vickerman was arrested and released on bail in July 2008. Within hours of his release, he had secured a new computer and carried on as before right until the eve of the trial in May 2012. Judge Evans was scathing of Vickerman’s behaviour, which he repeatedly categorised as ‘arrogant’ and a being characterised by a ‘refus[al] to accept that [he was] doing anything improper’. The judge was also critical of Vickerman’s ‘unwillingness’ to disclose the password to his computer which ‘unquestionably hampered’ the investigation: he labelled it as ‘absurd’ that an intelligent man who could recall minute details of the investigation could not recall the password without access to a keyboard.

Sentencing Vickerman, Judge Evans accepted that, in terms of culpability, this case may not have been the worst form of conspiracy to defraud which one could contemplate. However, noting the jury’s finding that Vickerman had engaged in deliberate dishonesty, he could not regard Vickerman’s conduct as attracting only the minimal penalty. Judge Evans recognised that he had to strike a balance noting on the one hand that ‘a very long sentence [was] no more likely to impact upon [Vickerman] than a shorter one’. On the other hand, he recognised 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’. He also highlighted that Vickerman’s sheer arrogance and lack of remorse were aggravating factors in arriving at the sentence outlined above.

As it turns out, Mr Vickerman was not one to go away quietly. In a very long blog entry on the STC website Vickerman stated ‘My name is Anton Vickerman and I am the proud owner of the now dead video search engine SurfTheChannel.com (STC). By the time you read this I will be starting my new life behind bars after receiving what is expected to be a “loony sentence” from Judge John Evans of Newcastle Crown Court for running my site from 2007 to 2012’. When this Kat tried to check more recently, the blog tirade had been removed from the website.

The IPKat notes that there is a degree of symmetry within the two camps which oppose each other in the battle between rights owners and those who campaign for liberalisation of copyright law.  Just as a small number of vindictive and heavy-handed actions by or on behalf of copyright owners forfeit considerable sympathy for the legitimate and reasoned case for copyright protection, so too do the reckless and arrogant conduct of a few people distract attention from the serious case that is made for reducing that level of protection.

Merpel adds, how refreshing it is to read of a judge calling a party to legal proceedings "arrogant", rather than (as so often happens) the other way round ...

9 comments:

WillT said...

I think "symmetry" is quite a good word for the background to this case; particularly having read through the statement by Vickerman; both sides seem to accuse each other of acting illegally, arrogantly, without regard for the actual facts and so on.

The most obvious that comes to mind is the fact, reported above, that TV Links had be shut down by FACT. While true, the last time I checked FACT's actions weren't proof of unlawful activity, and a judge eventually ruled in favour of TV Links (and the site is still running). Supposedly FACT got around this by pretending it was a "torrent" site (like The Pirate Bay) or "UseNet" one (like Newzbin) and then applying those rulings to prove illegality. At one point it seems FACT were even claiming he was producing fake DVDs, which is how they got details from his utility providers, and an illegal freezing order over his assets (it was discharged, either due to the incorrect justification, or because the financial investigations unit that applied for the order didn't have jurisdiction over him).

The full statement is definitely worth a read; I have a copy if anyone is interested (although I don't particularly want to publish it due to the rather defamatory, possibly justifiable, content).

I imagine the appeal, when it happens, will be very interesting.

Anonymous said...

"he labelled it as ‘absurd’ that an intelligent man who could recall minute details of the investigation could not recall the password without access to a keyboard."

Clearly Judge Evans uses 12345 as his password. I consider myself to be of at least normal intelligence and I too am unable to recite my password from memory. This is because I have taught myself the keyboard sequence and not the content of the password.

Anonymous said...

Vickerman is such a liar, saying in his rant that his servers are in Spain so he could use case law there when he admitted in court his website was hosted in Sweden. But then the piratebay boys went to prison in Sweden so he didn't want to be associated with them any more!
Also very interesting is what he didn't say, his guilty conscience forgot to deny the offence, it was just evrybody else that was in the wrong for investigating and convicting him!
The fact is he wasn't just linking, him and his cronies were uploading the films in China, Russia etc, then linking to them.

Anonymous said...

Vickerman wasn't as clever as judge Evans, his password was aired in court, it was a few simple words with the vowels changed to numb3rs, not a complex keyboard sequence, and an absurd lie to claim he could not remember it without a keyboard.

WillT said...

"Vickerman is such a liar, saying in his rant that his servers are in Spain so he could use case law there when he admitted in court his website was hosted in Sweden." If you read the statement, he makes it quite clear that they were in Sweden when FACT raided his house, but he then moved the site to Spain. Whether or not that should help a defence is another matter. As for the China stuff, his response is that a lot of the content (particularly that complained about) was uploaded by some dodgy, anti-piracy groups, in order to discredit his defence. If there was evidence he was uploading files, one assumes they would have convicted him of copyright infringement as well (although that has a maximum sentence of 2 years, so possibly not worth the bother).

I don't wish to suggest that Vickerman is completely innocent, but there are two sides to this story and prior to his statement only one was reaching the media (almost all reports being based entirely on FACT press releases; apparently there were no journalists covering the trial itself).

As for recalling passwords; I (possibly foolishly) use randomly-generated passwords in most cases, and I've been caught out several times when trying to use them on unfamiliar keyboards - needing a keyboard doesn't surprise me at all (although FACT still being able to access the data within a short time-period does).

Another interesting 'fact'; that "averaging £50k-$60k a month" one is almost provably wrong. The judge noted that claimed to be a "freak month"; £1m over 2 years is only £40k a month. But with costs of £750k over 2 years meaning £31k a month, that comes to <£10k a month profit (or >£15k a month loss in 2008). Ok, that's still a lot of money for your average person, but very little for what was supposedly a hugely popular site. And if making more than £100k a year was criminally dishonest, I imagine our prisons would be rather full.

Was he demonstrating "sheer arrogance and lack of remorse" or a genuine belief (whether rightly or wrongly) in being innocent? Definitely two sides to all of this; hopefully in the appeal a clearer, single picture will emerge.

Ben said...

A good example of a rather embarrassing own goal by the recorded music industry was the DCMA takedown notice issued by the BPI (British Phonographic Industry) and Universal against a less than flattering REVIEW of the latest Drake album 'Take Care' - asking Google to remove the review and one other from it's listings. The writer of the About.com review, Henry Adasom accused Drake's label Universal of ordering the takedown for 'copyright infringement' saying the notice "Makes absolutely no sense. The only UMG property on that page is the artwork, and IT IS fully credited. So what's the issue here?". The BPI said they issued notices to remove 'millions' of links each year, that this was an isolated error, and apologised. Google revealed earlier this year that the BPI filed 182,805 takedown requests with the search engine between May 2011 and July 2012, the second highest number after Microsoft. From now on Google say that they will take 'valid' copyright takedown notices into account when ranking web pages.

Anonymous said...

Vickerman was convicted by a jury of his peers, who had no doubt about his guilt. Few cases are as clear cut as this. Vickerman not only curated the links but uploaded infringing material for distribution. He was judged to have conspired to defraud.

Professional "copyright experts" are becoming as predictable as sociologists. They insist that no guilt can be attached to copyright infringement, or that any wrong must be counter-balanced by evil from the opposing side (as the Kat does here), or that infringement cannot equate to harm. Sometimes all three.

How refreshing that the public appears to be much wiser about IP crime than the "experts".



Anonymous said...

WillT:

"... both sides seem to accuse each other of acting illegally, arrogantly, without regard for the actual facts and so on."

Both sides do accuse each other of acting illegally, but only one of them is right. An assertion is not evidence.

If one of Vickerman's many lunatic accusations was true, the case would have fallen apart.

Anonymous said...

Vickerman apologised to Judge Evans, the Prosecution, the Police and the Court and admitted Contempt of Court Wednesday, November 21, 2012 in relation to material he caused to be published on sentencing and undertook to endeavour to have the material removed from where ever it may have been copied. His jail sentence was increased. http://tyneandwear.sky.com/news/article/47579

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