Exceptionally Troubling Ruling In The UK: Owners Of Links Site Guilty Of 'Conspiracy To Defraud'

from the how-so? dept

Thu, Jun 28th 2012 5:08am — Mike Masnick

We've written about the entertainment industry's overly aggressive legal campaign against the owners of SurfTheChannel -- a linking site -- before. Almost exactly three years ago, we wrote about how the private UK anti piracy group, FACT, had helped set up the raid on the offices of Scopelight, a startup creating search technologies. This wasn't a typical police raid: FACT (again, a private organization representing private companies) was allowed to come along for the raid. Scopelight built SurfTheChannel as a search engine that could find video. Some of that video was authorized, some of it was not. However, the two founders, a husband and wife team, Anton Benjamin Vickerman and Kelly-Anne Vickerman, were arrested after this raid and charged with "conspiracy to defraud." Note that they were not charged with copyright infringement. If "conspiracy to defraud" sounds familiar, it's the same vague law that was used against the owner of OiNK (unsuccessfully), against the owner of tv-links.co.uk (also unsuccessfully), and also against the creators of Mulve (don't know what happened to that case). Considering how this has failed in two key cases before, and it didn't look like SurfTheChannel was any different, it seemed unlikely to work here either. And, in fact, there were other serious problems with the case, including the issue that FACT itself (again: private organization) was given the Vickermans' computers.

Unfortunately, however, the court has found Anton guilty of "conspiracy to defraud" for which he faces 10 years in jail. 10 Years. His wife was found not guilty. Of course, FACT and other entertainment industry interests are cheering this on as a huge victory, and promising to use this to stifle all kinds of useful innovation... er, go after any other site they consider to be "pirate" sites, even if those sites have perfectly legitimate and non-infringing uses. The broadness of the law, and the vague and contradictory standards with which it has been applied in the UK should be exceptionally worrying to people -- especially those in the UK. It is no longer safe to try to create a useful service to help people find entertainment content, because you may get raided, private companies may get your computers and you may end up in jail. London has been building itself up as a tech/startup hub of Europe, but with rulings like these, don't be surprised to see entrepreneurs move elsewhere.

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Filed Under: anton benjamin vickerman, conspiracy, kelly-anne vickerman, surfthechannel, uk
Companies: fact, oink, scopelight, tv-links

54 Comments

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Anonymous Coward, 28 Jun 2012 @ 5:20am

the UK has become the biggest proponent of the entertainment industries. it is not only criminalizing everyone now, even previously legal exercise are being reclassed. from what i have read, the site was supposed to have been earning �35,000 a month from advertising, although there was no evidence, only another accusation, presented to back it up. this is all because of 'the special relationship' between the UK and the US and the need for the entertainment industries to show the power it has over almost everyone, everywhere. but, when they have someone as well like Ed Vaizey making laws and insisting that there will only be appeals allowed under certain conditions, what do you expect? most of what's in this DEA comes from where? any guesses?
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Spike (profile), 28 Jun 2012 @ 5:20am

All this tells me is they finally found a judge they can buy out.

Seriously, what other country does private interests get exclusive access to the evidence?

You only have to look at the last 2 letters in FACT's acronym to see that they are full of shit.

Copyright Infringement is NOT Copyright Theft. Perhaps they should change their name first, it might just give them a bit more credibility. :-)
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John Doe, 28 Jun 2012 @ 5:22am

This guy is a menace to society
I for one am glad that this guy got 10 years in jail. He is a menace to society.

On a serious note, does the UK government not see how totally disproportionate the punishment is here? Do they really want to put web site operators in jail for a decade? Is society better off now?
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silverscarcat (profile), 28 Jun 2012 @ 5:28am

So...
Do internet companies have to buy up a bunch of islands in the Pacific and move their businesses there?
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Duke (profile), 28 Jun 2012 @ 5:33am

Re: This guy is a menace to society
I for one am glad that this guy got 10 years in jail.
10 years is the maximum he could get - he won't be sentenced until the end of July. Given the incredibly broad scope of the offence (conspiracy to defraud) and the fact that the maximum sentence he would have faced had they actually used copyright infringement is 2 years, he will probably get significantly less than 10 years.

Not that this makes it right. Conspiracy to defraud is a very bad law - even the Home Office admitted it was "arguably unfairly uncertain" after the Law Commission told them to repeal it a while back. It really needs to die.

Hopefully, though, he will appeal and we'll get a nice Court of Appeal case laying out the law on linking, hosting etc. (if we don't get that from the O'Dwyer extradition appeal first).
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Anonymous Coward, 28 Jun 2012 @ 5:36am

i hope the UK economy suffers greatly, particularly in these poor financial times. the more people that forgo opening anything new or even continuing an existing venture in the UK, the better. i wonder how quick members of the entertainment industries will be to prop up the UK? they have been extremely quick to insist that the UK props them up!
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Dark Helmet (profile), 28 Jun 2012 @ 5:43am

Re: So...
Well, if they do, they better have SDI defense systems or risk being nuked out of existence by the United Song-producers of America....
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silverscarcat (profile), 28 Jun 2012 @ 5:46am

Re: Re: So...
Why would they need that?

They'd control the internet, which means, according to the fear-mongers...

They could control everything, like power grids and such...

Would be funny to see an airstrike fail horribly because they hacked the military.
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Dark Helmet (profile), 28 Jun 2012 @ 5:53am

Re: Re: Re: So...
"Launch the nukes, soldier!"

"But sir..."

"I said launch the damn nukes!"

404 Error
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Niall (profile), 28 Jun 2012 @ 5:59am

Re:
Can we just wish it on the entertainment companies, or I could equally wish bad luck on all the US who support the 'terrorist' MAFIAA and its satellite organisations!
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Jesse (profile), 28 Jun 2012 @ 6:36am

)

There, finally some closure. Better late than never I guess.
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Anonymous Coward, 28 Jun 2012 @ 6:37am

The second they handed the evidence over to a private party with a STRONG interest in seeing the defendant found guilty the evidence should have all been thrown out and not allowed in court.

I mean how do we know that a group with a strong incentive to find the defendant guilty didn't decide to start up the computers and 'add' some 'evidence' of their own?
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Anonymous Coward, 28 Jun 2012 @ 6:39am

Oh UK you never want to be outdone by your bastard child America. Even if the race is in bat-shit insanity and unfair corporate bought rights and laws.
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Anonymous Coward, 28 Jun 2012 @ 6:41am

Re: Re: Re: Re: So...
451 error, would be funnier.
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Anonymous Coward, 28 Jun 2012 @ 6:49am

Re: So...
That is so last year and it will fail at some time, when the islands gets raided constantly and illegally by US law enforcement and never recieve any compensation because of the lack of clarity in what to do in those situations. It is easier to place it on a ship in international waters for now or keep it flying in international airspace. Ideally Launching large satellites has to be the best solution so far even though they probably gets nuked by "accident".
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Anonymous Coward, 28 Jun 2012 @ 6:51am

Ah, my friend the UK, a frisky 4th world country where they think ketchup is a spice and tooth paste is optional. How I miss the urine smell of your London tubes and the soft touch of your pick pockets...
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Anonymous Coward, 28 Jun 2012 @ 7:03am

The UK is overrun with
fascism, yet they still can't get their trains to run on time and they still drink awful beer that's as warm as fresh piss.

Losers.
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abc gum, 28 Jun 2012 @ 7:07am

Fraud == intentional deception.

This was a site which hosted links ... what am I missing here?

"The owner of TV streaming links site SurfTheChannel has been found guilty of conspiracy to defraud at Newcastle Crown Court today for �facilitating� copyright infringement"

Errr - what?
Why not just charge them with - oh IDK - facilitating copyright infringement or something like that?
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Anonymous Coward, 28 Jun 2012 @ 7:08am

I do not think it has anything to do with the USA. UK have a lot of copyrighted music from especially the 60's to 80's. That is gotta count for some pressure to protect the music legacy.

This law, however, is a lot more worrying: It has been used for completely different companies with wide areas of interpretations and it seems pretty much to be a 50/50-chance of ending up in jail, completely depending on the judge. These kinds of rubber-laws are what dictators use to stay in power and it is very troubling to see it used in a previously free and democratic country, since it is a turn towards the end for the 3-forked system of power (the lawmakers are becoming police and judges in these cases!).
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Almost Anonymous (profile), 28 Jun 2012 @ 7:18am

Re:
I'm guessing you're a programmer? Yeah, the missing closing paren was driving me nuts too.
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Almost Anonymous (profile), 28 Jun 2012 @ 7:25am

Re:
Yeah, but you know, that brings up a good point. I know very little about UK's government, I *think* the Parliament is elected, yes? And while I assume that some UK politicians are bought and paid for, exactly how are the funds exchanging hands? Here in the US, the olde English word "bribe" is spelled c-a-m-p-a-i-g-n c-o-n-t-r-i-b-u-t-i-o-n.
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Leigh Beadon (profile), 28 Jun 2012 @ 7:28am

Re:
echo 'fixed';
thankUser('Jesse');
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Ninja (profile), 28 Jun 2012 @ 7:56am

Re:
While we are at that we could charge all truck manufacturers for facilitating drug transportation after all they are designed to transport all kinds of illegal goods, including drugs.

They are using some broad wording in the law along with their very own MAFIAAesque interpretation. And it seems some judge$ agree with thi$.
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Not an Electronic Rodent (profile), 28 Jun 2012 @ 7:59am

Re: This guy is a menace to society
On a serious note, does the UK government not see how totally disproportionate the punishment is here? Do they really want to put web site operators in jail for a decade? Is society better off now?
No it's completely reasonable... after all the average sentence for rape is 8 years in the UK and we all know that "stealing" imaginary money is far more serious than that! /sarc
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Danny (profile), 28 Jun 2012 @ 8:02am

Re: Re:
Its almost the same here in the UK.

Sometimes they just buy them am house or if its Peter Mandelson you just take him on a cruise.
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Not an Electronic Rodent (profile), 28 Jun 2012 @ 8:06am

Re:
i hope the UK economy suffers greatly, particularly in these poor financial times
Hey it's not our fault that as a nation we suck at ignoring stupid rules. Same with for example H&S law - every other country in Europe applies them with some degree of pragmatism or at least self-interest but not the UK... "it says so in the Rules!". If the US-Government-by-proxy (cf. entertainment industries) stopped coming up with such stupid "rules" the UK courts would stop trying to enforce them...
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Not an Electronic Rodent (profile), 28 Jun 2012 @ 8:10am

Re: Re:
exactly how are the funds exchanging hands?
Depends on your preferred medium... I understand bungs, considerations, jollies, contributions, consultancy, engagements, directorships, chairs, peerages fact finding missions and thickly filled brown envelopes of cash are all valid tokens of exchange among others...
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Not an Electronic Rodent (profile), 28 Jun 2012 @ 8:13am

Re:
"Everyone is guilty. We, your Corpora... um.. er.. Governmental Masters in our glorious munificence, get to decide who is allowed leniency. Remember friend citizen, the Government is your Friend."
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The eejit (profile), 28 Jun 2012 @ 8:15am

Re: Re: Re: Re: So...
No, they'd get a 502 error when the auth code is put in.
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The eejit (profile), 28 Jun 2012 @ 9:51am

Re: The UK is overrun with
Nah, we're not fascists. OTherwise I'd be arrested just for saying that we're not fascists.
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bob, 28 Jun 2012 @ 10:16am

So what if they have considerable non-infringing uses
Just because a mobster puts a huge wad of bills in the poor box doesn't make the crime okay.

There's a big difference between a tool that has multiple uses and a person who does multiple things. The person gets all of the benefits of society and so the person must follow society's rules and respect others.

The site isn't a tool, it's an extension of the people who work there and the people who work there apparently profited from piracy.

This site likes to echo the common complaint that search engines can't edit their content despite the fact that they brag about selecting the best stuff all of the time. It would be very easy for the search engines to blacklist obvious pirates like they blacklist sites that compete against them.

This guy had a choice and he clearly chose to profit off someone's hard work without sharing any of the profits with the people who produced the content. It's a laugh to hear everyone around here talk about the beauty of a sharing economy. When the search engines start sharing their ad revenue with the folks who make the sites possible, I'll start to think it's possible.
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Anonymous Coward, 28 Jun 2012 @ 10:17am

The publisher's of phone books should be charged with "conspiracy to defraud". Considering all the phone scams currently being used to bilk people out of money. Afterall a link site is just a phonebook for the internet.
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TtfnJohn (profile), 28 Jun 2012 @ 10:28am

Re: Re:
Add to the list Not An Electronic Rodent provided you can add private visits to what are sometimes called high end "massage" parlours when the media isn't around. The UK parliament is particularly interested in those if the number of sex scandals there is any indication.

For members of the Canadian parliament bribers get to substitute that for places that are hot in our winters with lots of beaches and young women in barely there bikinis. Even better are trips to Rio on some fact finding mission or other to investigate the poverty on display on Rio's beaches during Carnival!
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TtfnJohn (profile), 28 Jun 2012 @ 10:43am

Re: So what if they have considerable non-infringing uses
You might want to check the incredibly wide scope the law that convicted these two can allow. And the fact that more than a few legal experts in the UK are of the opinion that once one of these "convictions" works it's way to the higher courts it's likely to be tossed into the toilet.

You can add to that the not-so minor detail that the Metropolitan Police have been not-so-gently ticked off for their far too cozy relationships with private organizations like FACT and stunts like handing evidence over to them before the courts get to see it AND the defendants solicitors get to see it.

Yeah, I know it's all "Big Search" that has brought about all the "piracy" and "Big Search" needs to be reigned in in your view but then so does anyone whose opinions differ to yours.

And there isn't a thing that's stopping "Big Content" from buying ad space from Google or Microsoft or Yahoo on their own sites.

Oh...just a second, they already do!

Have another glance under your bed, bob. There be monsters there I'm sure, even if they aren't visible to anyone else.
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Anonymous Coward, 28 Jun 2012 @ 11:45am

What's the bet no one will remember this "conspiracy to defraud" charge even exists when trying to figure out how to deal with these people:
http://tvnz.co.nz/business-news/british-banker-emails-signal-age-irresponsibility-4950519

After all, it's not like these profiteer bankers posted links to content on the internet, or anything serious...
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Anonymous Coward, 28 Jun 2012 @ 12:06pm

First steps to anarchy
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Anonymous Coward, 28 Jun 2012 @ 12:17pm

Some of that video was authorized, some of it was not.

How much is some? Was it 50-50. Or was it overwhelmingly infringing with a small amount of non-infringing material; in the hope of mounting a contrived free speech defense?
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BeeAitch (profile), 28 Jun 2012 @ 7:28pm

Re: So what if they have considerable non-infringing uses
"The site isn't a tool..."

...but you are.
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Anonymous Coward, 28 Jun 2012 @ 9:07pm

Re: So what if they have considerable non-infringing uses
Yeah, just like Viacom used Big Youtube to find all the Big Videos that were Big Infringing on their copyright.
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John Bland (profile), 29 Jun 2012 @ 12:39am

� You guys really need to read it from someone who was at the trial:
http://surfthechannelfraudtrial.wordpress.com/2012/06/28/5/
Highlights:
*Judge leaves jury little choice after directing as a matter of law that knowingly linking to infringing content is illegal despite no such offence in the UK;

*Judge ignores SportsRadar High Court judgement that states if an infringement takes place it takes place in the country the server is based (linking to infringing content legal in Spain where SurfTheChannel was based);

*Judge states �if I have got the law wrong then a higher court than this one will sort it out�;

*FACT Ltd staff admit to �around 15 surveillance operations a month� carried out on UK citizens but say �we are a private company so don�t have to abide by the Regulatory Investigatory Powers Act�;
*Pascal Hetzscholdt admits that senior MPAA personnel including John Malcolm contacted NBCUniversal to pressure them into terminating A&E Television Networks partnership agreement with SurfTheChannel;
*Jury not told of DeBeasi�s ownership of paedophile site �JailBaitBox.com� which contained images of �girls under the age of consent that you want to fuck� according to DeBeasi�s blog;
*Vickerman provides unchallenged evidence that Anti-Piracy company�s, in particular Aiplex Software, are responsible for automated adding of around a million links to the STC website.

In addition, at the beginning of the trial, the Private Prosecutors (MPAA/FACT) sought and were granted a Public Interest hearing with the Judge. This private cozy 3 hour session excluded the defendents and their lawyers. After that session the judge's hostility towards the defendents increased quite dramatically. Any quesses as to what they discussed in private?
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Anonymous Coward, 29 Jun 2012 @ 2:38am

Some of that video was authorized, some of it was not.

How much is some? Was it 50-50. Or was it overwhelmingly infringing with a small amount of non-infringing material; in the hope of mounting a contrived free speech defense? Or alternatively, was it overwhelmingly non-infringing with only a small amount being infringing? If that last one was indeed the case, mounting a free speech defense should be paramount. Anyone know for sure which it is?
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adam, 14 Aug 2012 @ 8:27am

I'M AS MAD AS HELL AND I'M NOT GOING TO TAKE IT ANYMORE!!!!!!!!!!!!!!!!!!!!!!!!!!!
Network (1978)
http://www.youtube.com/watch?v=WINDtlPXmmE
http://www.youtube.com/watch?v=vQAzpV7GC0U
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ffs, 14 Aug 2012 @ 8:36am

"It is no longer safe to try to create a useful service to help people find entertainment content"

OH PUH-LEASE. Did you even look at the site? This is why the "sharing is caring" internet warriors are loons. They're not just lying to everyone else, they're lying to themselves. If you didn't make it, don't take it.
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Harry, 14 Aug 2012 @ 8:40am

"If you didn't make it, don't take it."

Please tell me what was taken?
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ffs, 14 Aug 2012 @ 8:47am

Re:
The ability to watch programmes you otherwise would have to pay for in some way.

If you believe they haven't done that, feel free to continue lying to yourself.
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Harry, 14 Aug 2012 @ 9:19am

Re: Re:
I don't mean to be pedantic about this but it's important to be factual.

"The ability to watch programmes you otherwise would have to pay for in some way."

Your statement seems a bit all or nothing. I'm pretty sure the site was not as black or white as this. For example, not all programmes would have been exclusively on paid TV. Some were free to air. Even if someone did not own a TV licence in the UK to "pay" for these programmes, it is still legal to use 4OD or BBC iPlayer (free services).

If a programme was exlcusively on paid TV or only available via DVD or some other paid medium then the man is guilty of providing a service which links to other peoples hosted copyright infringing material.

Is that the same as a lost sale? How do you measure what is "lost"? Are you sure someone watching these programmes doesn't put money back into the system in other ways?

I don't know the answer to these questions but I do know that conspiracy to defraud and 4 years in jail seems a bit extreme for telling someone where something is.
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dansk, 14 Aug 2012 @ 9:24am

Re:
That blog has been deleted - any idea where it went..?
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wtf, 14 Aug 2012 @ 9:29am

Re: Re:
"The ability to watch programmes you otherwise would have to pay for in some way."

They took that? Where from?
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Anonymous Coward, 14 Aug 2012 @ 11:21am

Re: Re: Re:
Again, you miss the facts from your argument.

Nothing was taken by this person.

He ran a website with LINKS.
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DMorgan, 15 Aug 2012 @ 1:13am

Don't be silly, Mike
Mike Masnick - who are you? this guy's lawyer? Other idiots commenting here may not know much but you should be better informed. The guy was knowingly facilitating piracy on a massive scale, and profiting from it big time. No doubt about that. Maybe he thought his site's links were all to people who wanted to share their home videos? Duh!!! One look at the site and you could see most of it was pirated stuff. You may not agree with copyright on principle but until the revolution happens and all copyrights are thrown in the bin, piracy is a crime and knowingly facilitiating and profiting from crime is also criminal. Scopelight was "a startup creating search technologies"? The site may or may not have used clever technologies, I don't know. And it may or may not have had other potential applications. The facts remain: the site was used massively for piracy, the guy running the site knew that, the guy made loads of money from that. If anything, the laws should be strengthened and the punishments harsher. 4 years in jail? He'll be out after 2 to spend his stash of cash and never have to work again for the rest of his life. If that's punishment then sign me up...
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Anonymous Coward, 15 Aug 2012 @ 2:47am

Re: Don't be silly, Mike
As others have posted before, Royal Mail and other courier services also facilitate illegal activities.
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Enigma, 15 Aug 2012 @ 4:35am

Somewhat dodgy ground here
In the interests of procrastinating from what I am supposed to be doing (linked here by the BBC), I took a look at the law surrounding conspiracy to defraud, which is nicely summarised by the font of all knowledge, wikipedia.

On the page, it links to the Attorney General's advice on the law: http://www.attorneygeneral.gov.uk/Publications/Documents/conspiracy%20to%20defraud%20final.pdf

Qu oting from that document, point 15 (page 4/5): "The dishonest obtaining of land and other property not protected by the Copyright, Designs and Patents Act 1988 adn the Trademarks Act 1994, and other confidential information. The Fraud Act will bite where there is intent to make a gain or cause a loss through false representation, failure to disclose information where there is a legal obligation to do so, or in the abuse of position;

Dishonestly infringing another's right; for example the dishonest exploitation of another's patent in the absence of a legal duty to disclose information about its existence;..."

This refers to conduct that can only be prosecuted as conspiracy to defraud, as the Fraud Act 2006 is designed to be a more specific and incisive law, and it is statutary law as opposed to the common law conspiracy to defraud.

Therefore, if I am reading this right (and I am not a lawyer by any means), this case falls short of the Fraud Act because there can't be any evidence for dishonesty.

This particular branch of common law appears to be built up to encompass fraudulent behaviour even when that behaviour itself is not an offence, which I admit seems counterintuitive, however I will restate that there are no specific rules and regulations as it is not statutory laws - there is no "law" per se. It is only the accumulation of judicial decisions over the years - and I don't have the time (or the ability) to comb through the case law of the last however many years to see where the lines are drawn.

What I would say though, is that an appeal should be made, and the Court of Appeal will sort it out. That is their job, after all, to interpret the law effectively. Its one of the defining aspects of the British judicial system as far as I am aware.
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Enigma, 15 Aug 2012 @ 4:38am

Re: Somewhat dodgy ground here
Apologies, one point that needs clarification - I am stating that as this case falls short of the Fraud Act 2006, then by implication, it may well fulfil the requirements of "conspiracy to defraud".

Didn't come through all that well in my last comment.
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DMorgan, 15 Aug 2012 @ 6:03pm

Re: Re: Don't be silly, Mike
Are you serious? If a UK courier company opens up a service from Columbia to London that knowingly allows customers to evade customs and is used almost exclusively for drug smuggling then the case would be comparable and yes, they probably would be prosecuted. Whether or not you think that drugs should be legalized.
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