SurfTheChannel Founder Gets Extra Jail Time For Revealing Documents That Raised Questions About His Conviction

from the thou-dost-protest-too-much? dept

You may recall that, earlier this year, we wrote about a very troubling ruling in the UK against the founder of SurfTheChannel, Anton Vickerman. STC was a linking site, no different than others that had been found perfectly legal in the UK. After the conviction, which resulted in Vickerman being put in jail for four years, some additional info came out that was really horrifying. First, there was the fact that this criminal case, including the investigation, was driven entirely by a private anti-piracy organization, FACT, which is financed by the Hollywood studios. Yes, a criminal case that was run by private interests. Actual law enforcement had refused to proceed with the case, saying that there wasn't evidence of direct infringement. Furthermore, some "anonymous" notes from the court room suggested a judge was on a mission to put Vickerman away.

Now comes the news that Vickerman has been hit with contempt of court and given an extra month in jail all for releasing some of the documents that revealed what a farce the case was. Once again, the judge seems focused on punishing Vickerman for his attitude, rather than any real problem:

Vickerman, 38, apologised to Judge John Evans, who had previously branded him the "most arrogant" defendant he had ever come across.

Vickerman, from Gateshead, said: "I genuinely believed that this was in the public domain, so I apologise for that."

The judge jailed Vickerman for an extra month for the contempt, saying: "You were aware that there were restrictions upon what you could publish.

That whole "most arrogant" part is really troubling. If you were genuinely innocent and being railroaded in a criminal case by private money (the same money that financed a competitor to your site), I think you'd be pretty pissed off too.

Filed Under: anton vickerman, contempt of court, uk
Companies: fact, surfthechannel

Horrifying: Surfthechannel Criminal Conviction Driven By Hollywood Money -- Not The Government

from the a-broken-system dept

We've been following the Surfthechannel/Scopelight case since early on, and there have always been serious questions about it. More than three years ago, we were wondering why a private, Hollywood-financed anti-piracy operation called FACT wasn't just able to take part in the raid of Anton Vickerman's house, but also got to take the computers that were seized. A private party should never be able to get the computers of those that they're accusing in a criminal case. Soon after Vickerman was declared guilty, we discussed some anonymous courtroom notes that suggested extremely serious oddities with how the case was conducted -- including (again) FACT more or less running the show, and having trouble keeping important data.

Following Vickerman's sentencing last week, even more info came out about the case that raises incredibly important questions about its validity. Tim Lee over at Ars Technica has gone through the issue in great detail, highlighting how FACT didn't just take part in the raid, but it financed the government agency that did the investigation and then financed and ran the criminal prosecution against Vickerman.

Lee explains that this is an oddity/antiquity of UK law, in which private parties are actually allowed to bring criminal charges against other private parties, rather than (as in the US) needing the government to decide to bring charges. In fact, in this case, government prosecutors expressly refused to bring charges noting that they didn't think there was a case -- information that was kept from Vickerman. From the Crown Prosecution Service:

I understand from [Northumbria Detective Constable] Watkin that there have been no other successful prosecutions that he is aware of where we could point to this type of website being classified as amounting to "making available... by electronic transmission," the legal standard needed to find Vickerman guilty of copyright infringement. At present it appears uncertain if in fact what the suspect has done does infringe this particular legislation. Certainly on the evidence thus far provided it is impossible for me to determine if this is the case and therefore I cannot advise any prosecution on the evidence presented.

The CPS found the whole thing bizarre:

His 'crime' is to make it easier for others to find what is already there. This begs the rather obvious question of why he is being pursued rather than those who actually breach the copyright by displaying the material.

And yet, FACT went through with the case, because of an oddity in UK law that lets a private party pursue a criminal charge if they're willing to finance it. And FACT was more than willing to finance nearly ever aspect of this case, apparently. It did the original "investigation" in which it apparently recorded a key meeting. The two sides dispute what was said in that meeting... but FACT can't seem to find the recording (of course). The report also explains how FACT funded the Bedfordshire Trading Standards Financial Investigations Unit (BTSFIU), officially a government agency, but one that was directly funded by FACT to be its own private police force, and which apparently took the job gleefully.

Of course, you would think that some of this info would get out before a judge, but the judge seemed equally unconcerned with the law, as focused as he was on Vickerman apparently being arrogant. Even more bizarre, the judge didn't seem at all concerned about precedents that went the other way. For example, the TV-Links case, which was quite similar, ended up with an acquittal, so you might think that any reference to it would be in Vickerman's favor. Not in this judge's mind:

TV-Links had already engaged in a similar operation but you believed you could do better. You pressed on knowing that TV Links had been taken down following the intervention of FACT on the basis that what it had been doing was unlawful

Yes, you read that right. Even though TV Links was found to be lawful, in this judge's mind, the fact that it had been taken down by FACT (the same group prosecuting this case), should have been evidence to Vickerman that STC was illegal. Think about that for a second. It's almost mind-blowingly ridiculous. The mere accusation that another site was illegal, even though that later turned out to not be true was enough evidence for this judge that STC's actions were illegal. How does a judge who thinks that way keep his job?

The judge also does not seem to understand the nature of the internet or links, or how user generated content works. He seems to think that before anyone can post a link to a website, the owner of that website should need to contact a copyright holder to find out if the posting of that link and the underlying content it points to are legal. Seriously:

When it was suggested in cross examination that it was obvious that the films that you were posting links to were to links to recent films and that you were helping people to link to copyright infringing films, you insisted that you couldn’t know if it was infringing copyright, that the studious might have granted right holder licences to the films of which you had no knowledge. That was certainly true and bound to be true if you didn’t bother to check with the copyright owners and check you most certainly didn’t.

The judge also takes a movie studio exec at face value, when she tells the court that "piracy" means fewer blockbuster movies -- despite the fact that approximately four times as many movies were made last year than were made 15 years ago. Actual facts don't appear to be this judge's strong suit. He also uses the fact that since the movie industry pays taxes, if it struggles, fewer taxes are paid. But, if that's a crime, then any industry that is declining suddenly can implicate any upstart competition for those same reasons.

The whole thing is both bizarre and scary.

One hopes that, given these rather horrifying details, conflicts of interest and inconsistencies, it will be possible to revisit much of this on appeal.

Filed Under: anton vickerman, bias, crimnal law, private parties, prosecution, surfthechannel, uk
Companies: fact, scopelight, surfthechannel

SurfTheChannel Owner Anton Vickerman Sentenced To Four Years In Jail For 'Conspiracy'

from the nods-and-winks dept

In June, we underlined the disturbing UK ruling that found Anton Vickerman guilty of "conspiracy to defraud" for operating SurfTheChannel, a TV link indexing website that hosted no infringing content whatsoever. The case raised huge concerns from the very start, when police invited FACT (a private anti-piracy group) to join the raid on the STC offices—and it culminated in a man facing up to 10 years in jail for building a popular website, despite not actually facing charges of copyright infringement since he did no such thing. The "conspiracy" charge allowed a conviction on the basis of Vickerman maybe-kinda-sorta being adjacent or somehow connected to infringement even though no specific copyright laws were broken.

Now, the sentencing has come down, and Vickerman will be spending four years in prison. Four years of his life... for operating a non-infringing website. All on the basis of a charge that failed against two extremely similar sites. Not only does this seem like an insane punishment, it is going to create a massive chilling effect on innovative online services. Of course, FACT is extremely proud of both these things:

"This case conclusively shows that running a website that deliberately sets out to direct users to illegal copies of films and TV shows will result in a criminal conviction and a long jail sentence," FACT Director General Kieron Sharp says.

"The sentencing indicates the severity of the offenses committed and the sophistication of [Vickerman's] criminal enterprise and should send a very strong message to those running similar sites that they can be found, arrested and end up in prison."

That's quite the picture to paint of STC. In reality, the site did not aim to direct users to illegal copies—merely to help users find film and TV content online. There happens to be a lot of it—including lots of legitimate content from a variety of sources like Hulu and the networks own websites. STC, with its community-driven model where users submit and vote on the quality of links, indexed all those legitimate sources—as well as many infringing links that were also submitted. STC even had commercial partnerships with networks like A&E and the Discovery Channel—and there were suggestions that the MPAA pressured those networks into ending the relationships before the trial, in order to better paint STC as a dedicated piracy service. And there was little or no evidence that Vickerman was involved in uploading or even sourcing the community content, infringing or otherwise, which is why a direct charge of copyright infringement didn't happen. Meanwhile, merely linking is not a crime. So what's left? Just the vague charge of "conspiracy to defraud", which sounds a lot like "felony interference with a business model", or basically "doing something we just don't particularly like." This isn't the first time UK conspiracy laws have been used in highly questionable ways—in fact, it's been a subject of controversy there since the 70s, when a judge infamously stated that a conspiracy charge could be based on as little as "a nod and a wink."

Anton Vickerman is paying the price for doing nothing more than making it easy to find content online. It's not unlike Google being browbeat into filtering results from supposed pirate sites—the entertainment industry doesn't want to compete by offering more legitimate options, and it doesn't want to go after the actual people doing the infringing, so it tries to find ways to put all the pressure on intermediate third parties who aren't directly guilty of anything, just because it's easier and faster. Innovation gets blocked, innovators get put in jail, and the industry doesn't have to lift a single competitive finger. This is an unfortunate outcome that, once again, does absolutely nothing to stop piracy, since eliminating one ultra-popular site like STC only clears the top spot for the hundreds of similar sites that are jockeying for the position. Even if it was effective at scaring all such sites out of the UK, they would only pop up in other countries, or people would just move on to the next easy method of finding what they want. Vickerman's questionable conviction and ridiculous sentence send only one message that has any impact: don't operate user-driven websites in the UK.

Filed Under: anton vickerman, conspiracy, uk
Companies: fact, surfthechannel

Anonymous Courtroom Notes Raise Serious Questions About SurfTheChannel Conviction

from the a-nod,-a-wink-and-a-false-beard dept

Update: The blog has been taken down, but a Google cache remains.

We just wrote about the extremely troubling ruling in the UK that has left Anton Vickerman, the operator of the TV linking website SurfTheChannel, facing up to ten years in jail. The charge is the rather ambiguous "conspiracy to defraud", which is not surprising, because it's still not clear what STC did that was actually illegal—it certainly wasn't copyright infringement, since similar sites in the UK have been found to be non-infringing in the past. These websites don't host any pirated content, they only index links to videos on other sites—and there's no evidence that their operators assisted in the uploading of that third-party content. At worst, it can be argued that they were somehow implicitly encouraging their users to upload infringing content and submit the links, which is why "conspiracy to defraud" is just about the only charge that could stick. The UK has a notoriously low bar for conspiracy charges, which can be used to go after people who have gotten on someone's nerves without really breaking any laws, and this has been the subject of controversy for some time.

But, even when it comes to the conspiracy charge, there are some serious questions that need to be answered—especially after a look at this collection of notes from the trial posted by an anonymous blogger. I'm taking this information with a grain of salt, because the source is unidentified, and it also can't be ignored that the notes are one-sided and focus on flaws in the prosecution's case—so there may well be another significant side to the story. But there is also enough specific information about the case that it seems unlikely that the notes are fake, and some of the things that happened look very bad no matter what other evidence was presented.

First, there are several things the judge did that are concerning:

• 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";

What the entertainment industry has wanted all along is for linking to content to simply be illegal, so they twist around interpretations of various laws to try to make it so. From the sound of it, the judge let that happen to some degree, despite precedent to the contrary. The notes then go on to detail the activities of FACT, the Hollywood-backed private group that independently investigated Vickerman (without police knowledge) then helped set up the raid on his offices. Their investigation included posing as potential home buyers to gain access to his house, and telling service providers (like his ISP) that he was selling counterfeit DVDs to get them to share information about him. There was even a bizarre dispute about whether or not Vickerman was wearing a false beard at some point, but the details are unclear, and the FACT agent claimed in court to have lost the log book about the incident. FACT also admitted that it conducts about 15 of these surveillance operations a month. Other statements made by FACT reveal that it was extremely sloppy in its evidence gathering methods, and that it had a clear goal of shutting down STC regardless of legal authority:

• FACT Ltd staff admit to attending raid on Vickerman's address with USB stick that contains a replacement home page to be placed on SurfTheChannel website that states “This website is under investigation” despite having no legal authority to do so and in contravention of the Computer Misuse Act 1990;
• FACT Ltd contractor Ben Clelland admits to copying all case evidence from Vickerman’s computer to a USB drive, putting USB drive in pocket and leaving house without alerting Police that this evidence existed or bagging and tagging it. All forensic evidence in case emanates from this USB drive.
• FACT Ltd contractor Ben Clelland admits to “making a mistake” by not attaching a write blocker to his examination computer before examining USB drive data. All file creation dates on evidence are changed.

I don't know the details of UK procedure, but it sounds like there should be serious questions about the admissibility of that evidence. The other component of FACT's case was their star witness, Brendan DeBeasi, who had been involved with STC in the past and admitted offering to bring the site "to its knees" for the highest bidder. DeBeasi faces charges in the U.S., and testified in exchange for immunity and more:

• DeBeasi says he is not tailoring his evidence to help FACT despite admitting that his immunity deal in the US is dependent on him “performing well” in the Vickerman prosecution;
• DeBeasi admits MPAA offered him a job not long after he agreed to cooperate in prosecution of Vickermans;

A representative of the MPAA also testified, revealing that he posed as a potential STC investor to gain access to Vickerman. Then, some interesting facts about the MPAA's broader strategy were revealed. It turns out that STC had commercial deals with some networks, including A&E and Discovery, but those partners withdrew before the charges were brought—allegedly under targeted pressure from the MPAA:

• Defence accuses the MPAA of arranging commercially damaging news stories containing false information about STC in an attempt to isolate it as a “piracy site” so that its commercial partnerships with TV networks such as Discovery Channel, A&E Television Networks and others are destroyed;
• [MPAA representative] 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;

The notes also highlight several serious errors on behalf of FACT's lawyer throughout the trial. Most notably, the prosecution repeatedly presented digital forensic evidence that was clearly flawed and in some cases seemingly presented in a very selective way to paint a picture of guilt. Though FACT did back down on some of these instances, it casts a lot of doubt on their approach to building a case:

• [FACT Prosecutor David] Groome opened case by saying that the Chinese websites linked to by STC are “run by Chinese Gangsters”, “obviously and completely illegal” and “owned by thugs” amongst other things. Anton Vickerman accuses him of misleading the jury when he presents evidence that the sites referred to (Youku & Tudou) are listed on the New York Stock Exchange and that another (56.com) is funded by the Venture Capital arm of FACT Director Walt Disney Studios. Vickerman also presents evidence that many of FACT's directors have partnership deals with these so called “Chinese Gangsters”;
• Groome tells jury that there were many many movie files found on Vickerman's computers and that he was uploading them to third party websites before linking to them from STC. This is again proven false when the defence shows that there is only 1 movie file found on any of Vickerman's computers and the other handful of video files are for TV shows all of which were downloaded for personal use. The defence also shows that there is not one shred of evidence that any uploading took place from Vickerman's computers despite 3 separate teams of forensic investigators inspecting the computers;
• Groome tells jury that Vickerman saved specific forum posts and private messages to his computer that talk about uploading and other controversial topics. Vickerman accuses Groome of again misleading the jury by showing that the posts they have exhibited are extracted from a backup of the forum which contained 91,000 posts which he had only seen a tiny amount when browsing the forum from day to day. Groome tells the jury that a spread sheet produced by the prosecution proves that links to movies were added to the STC site by Vickerman from his computer. When Vickerman says that is not true Groome tells him that he is therefore calling FACT witness Andrew Smith a liar. Vickerman then points out that the spread sheet is an extract created by Smith of a backup from the STC database that shows list of links to movies added to the STC database by those users. Not Vickerman adding the links from his computer. Groome eventually agrees.
• Groome ambushes Vickerman with a printout of a forum post and accuses him of running a server that staff uploaded material to which was then streamed to STC's users. Vickerman flatly denies this and explains that he is getting confused and that STC used a complicated system for hiding its links from its rivals. The next day Vickerman accuses Groome of misleading the jury again by printing out only the first page of the forum post when the third page actually shows that the forum thread is regarding the link hiding system not the hosting/streaming of content by STC.

Vickerman himself raised some damning points as well, including something that sounds a lot more like a genuine "conspiracy"—evidence of infringing links being added to the site by anti-piracy groups themselves:

• Vickerman explains that SurfTheChannel's then number one rival, BlinkX.com, has commercial partnerships with every one of FACT's directors despite BlinkX.com having the exact same links that FACT is using as evidence of illegality in this case;
• Vickerman provides unchallenged evidence that Anti-Piracy companies, in particular Aiplex Software, are responsible for automated adding of around a million links to the STC website.

(Interestingly, BlinkX.com—once a well-known pirated TV destination—seems to have been recently scrubbed of most infringing links.)

Again, it's entirely possible that there are errors and omissions in these notes—but the points of concern really are piling up. It seems insane that Vickerman faces ten years in jail for actions taken primarily, and perhaps entirely, by the users of his website and not by him. In court he noted that he researched the law and received advice that merely linking to infringing material was entirely legal—and from the many apparent flaws in the evidence showing that he participated in uploading, it looks like he was careful to ensure that he didn't cross that line. Some will call this exploiting a legal loophole, but it's not a loophole—it's a vital safety valve on copyright, a law that already flirts dangerously with curtailing freedom of speech. It is not illegal to merely point to something in the internet. The real legal loophole is the charge of "conspiracy to defraud"—a seemingly magic way to create a general sense of wrongdoing where no lucid laws have been broken.

Filed Under: anton vickerman, conspiracy, uk
Companies: blinkx, fact, mpaa, surfthechannel